273 A.D. 311, Bull v. Stichman

Citation:273 A.D. 311, 78 N.Y.S.2d 279
Party Name:HENRY A. BULL, Appellant, v. HERMAN T. STICHMAN et al., Constituting the Emergency Housing Joint Board, et al., Respondents.
Case Date:March 24, 1948
Court:New York Supreme Court Appelate Division, Third Department
 
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Page 311

273 A.D. 311

78 N.Y.S.2d 279

HENRY A. BULL, Appellant,

v.

HERMAN T. STICHMAN et al., Constituting the Emergency Housing Joint Board, et al., Respondents.

Supreme Court of New York, Third Department.

March 24, 1948

Page 312

APPEAL, transferred from the Appellate Division of the Supreme Court in the fourth judicial department, pursuant to section 618 of the Civil Practice Act, from a judgment of the Supreme Court in favor of defendants, entered August 27, 1947, in Erie County, upon an order of the court at Special Term (WILLIAMS, J.), granting a motion by defendants for a dismissal of the complaint. It was alleged in such complaint that Canisius College of Buffalo is a religious educational institution conducted by the Roman Catholic Church; that on April 30, 1947, the president of the college requested the New York State Commissioner of Public Works, a member of the Emergency Joint Housing Board, to consider an application for an appropriation to remodel a building formerly used as a hospital by the Sisters of Charity, to provide an extension to the college and accommodate seven hundred veteran students in fifteen classrooms with library, cafeteria and laboratory facilities; that, at a meeting of the housing board on May 5, 1947, $128,000 was allocated for such purpose, and the carrying out of the project would be in effect a gift by the State to an institution wholly or in part under the control and direction of a religious denomination and would be in violation of the Constitution of the State of New York, particularly section 4 of article IX thereof.

COUNSEL

Henry Adsit Bull, appellant in person.

Charles J. Wick for Canisius College, respondent.

Rann, Brown, Sturtevant & Kelly for Metzger Construction Corp., respondent.

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Solicitor General, and Henry S. Manley, Assistant Attorney-General, of counsel), for all other respondents.

DEYO, J.

The plaintiff, as a citizen and a taxpayer, seeks a declaratory judgment to the effect that a $128,000 allocation to Canisius College by the Emergency Housing Board is unconstitutional.

Page 313

Justice WILLIAMS dismissed the complaint (189 Misc. 597), on the grounds that the plaintiff, having no special or peculiar interest in the matter other than that common to all taxpayers and citizens, lacked legal capacity to bring the action and hence, that the complaint was insufficient. This is the only question presently before us, and a study of the problem of constitutionality, interesting though it may be, must be deferred.

The leading case on the subject, although there were many earlier ones, is Doolittle v. Supervisors of Broome County (18 N.Y. 155). There, certain residents and freeholders of the town of Chenango, sought to have an act of the Board of Supervisors creating new townships declared null and void. The court held that such an action would not lie at the instance of persons having no other interest than one common to all freeholders. The court said at pages 162-163: 'Every person may legally question the constitutional validity of an act of the legislature which affects his private rights; but if a citizen may maintain an action for such a purpose in respect to his rights as a voter and taxpayer, the courts may regularly be called upon to...

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