Aldrich v. City of New York

• Decision Date: 25 October 1955
• Citation: 145 N.Y.S.2d 732,208 Misc. 930
• Parties: Alexander ALDRICH and Leonard L. Sutter v. The CITY OF NEW YORK, Robert F. Wagner, as Mayor, Abe Stark, as President of the Council, Lawrence E. Gerosa, as the Comptroller, Hulan E. Jack, as President of the Borough of Manhattan, John Cashmore, as President of the Borough of Brooklyn, James J. Lyons, as President of the Borough of the Bronx, James A. Lundy, as President of the Borough of Queens, and Albert V. Maniscalco, as President of the Borough of Richmond.
• Court: New York Supreme Court

Page 732

145 N.Y.S.2d 732

208 Misc. 930

Alexander ALDRICH and Leonard L. Sutter v. The CITY OF NEW YORK, Robert F. Wagner, as Mayor, Abe Stark as President of the Council, Lawrence E. Gerosa, as the Comptroller, Hulan E. Jack, as President of the Borough of Manhattan, John Cashmore, as President of the Borough of Brooklyn, James J. Lyons, as President of the Borough of the Bronx, James A. Lundy, as President of the Borough of Queens, and Albert V. Maniscalco, as President of the Borough of Richmond.

Supreme Court, Special Term, Queens County, Part I.

Oct. 25, 1955.

Lovejoy, Morris, Wasson & Huppuch, New York City, for plaintiffs. Newbold Morris, New York City, of counsel.

Peter Campbell Brown, Corp. Counsel, New York City, for defendants. Harry E. O'Donnell and Morris R. Weitzer, New York City, of counsel. Thomas I. Brennan, New York City, for amicus curiae, Downtown Community Association, Inc.

DALY, Justice.

In this taxpayers' action, plaintiffs move for an injunction pendente lite and defendants cross-move (1) to dismiss the complaint for failure to state facts sufficient to constitute a cause of action, (2) for judgment on the pleadings and (3) for summary judgment.

Plaintiffs are members of the Board of Directors of the Park Association of New York City, Inc., a non-profit membership corporation organized for the preservation and extension of city parks and playgrounds. Defendants are the City of New York and the members of its Board of Estimate.

Formal allegations aside, the complaint contains the following facts: By chapter 456 of the Laws of 1906, the Legislature of the State of New York authorized the City of New York to establish and maintain a seaside park for the health and recreation of its citizens, and empowered the City to acquire a site, either by a private sale or by condemnation proceedings, as determined by the Board of Estimate and Apportionment, which was authorized to appropriate two and one-half million dollars for such purpose. Under that statute, the care, management and control of the property was vested directly in the Park Department, but the Board of Estimate and Apportionment (as it was then known) was empowered to erect, maintain and support a hospital or hospitals so long as the hospital buildings did not disfigure the park or interfere with the purposes of public use and recreation. Chapter 456 of the Laws of 1906, it is alleged, is still in full force and effect.

Pursuant to the authority conferred by that statute, the Board of Estimate and Apportionment, by successive resolutions in the years 1911, 1912 and 1913, acquired by condemnation a tract of land, comprising approximately 262 acres, for park purposes. That tract of land has since become known and still is known as Jacob Riis Park. By resolution dated January 25, 1912, the property was designated upon the map as a public park. Title was vested in the City of New York on March 21, 1912, and the final decree of condemnation was dated April 14, 1913.

By resolution of the Board of Estimate and Apportionment adopted on April 24, 1913, a site of approximately 14.4 acres was withdrawn from the jurisdiction of the Department of Parks and conferred upon the Board of Trustees of Bellevue & Allied Hospitals for the construction of the Neponsit Beach Hospital, which was thereafter done, but that site has remained on the city map as a part of a public park.

Recently, the Neponsit Beach Hospital was discontinued, and on April 21, 1955, the Board of Estimate accepted the surrender of the entire site of Neponsit Beach Hospital from the Department of Hospitals. Thereafter, the Commissioner of Parks, by communications to the Board, proposed to utilize the former hospital land to extend Jacob Riis Park in order to relieve overcrowded conditions at the park and beach areas, to develop lands for softball and baseball fields and to construct a new salt water swimming pool.

A report of the City Planning Commission, adopted on June 29, 1955, recommended the assignment of the Neponsit Beach property to the Department of Parks.

In a report of the Acting Director of the Budget to the Board of Estimate, dated July 14, 1955, three alternatives for the disposition of the property in question were pointed out: (1) Retain the property under the jurisdiction of the Board and offer it for sale to private developers. (2) Assign the beach and sufficient upland for the extension of the promenade to the end of Rockaway Beach. (3) Assign all the property to the Department of Parks as requested.

On July 21, 1955, the Board of Estimate, by a vote of 10 to 6, defeated a resolution formally authorizing the assignment of the hospital site to the Department of Parks.

In paragraph 11 of their complaint plaintiffs allege, on information and belief, that 'there is a definite proposal before the Board of Estimate from a private developer to purchase said property for the purpose of erecting a 'beach club and hotel thereon'.' In paragraph 12 plaintiffs allege, also on information and belief, that

'the Comptroller of the City of New York has recommended and continues to threaten to recommend to the Board of Estimate the sale of said property to private purchasers; that the action of certain other members of the Board of Estimate, namely, the Presidents of the five Borough[s], in voting to disapprove the resolution before the Board of Estimate on July 21, 1955, authorizing the assignment of said property to the Department of Parks implies agreement with the Comptroller and presents an immediate danger that said Board of Estimate, by majority vote, might authorize such sale to private purchasers in accordance with the expressed recommendation of the Comptroller.'

And in paragraph 16 plaintiffs allege

'That the matter of the disposal of said City-owned property is still before the Board of Estimate; that said Board of Estimate might at any time take action to offer such City-owned property for sale to private purchasers * * *.'

In conclusion, plaintiffs allege that any action of the Board of Estimate to offer the site of the discontinued Neponsit Beach Hospital for sale to private purchasers and the sale of such property to private purchasers would constitute an illegal official act on the part of the Board which would imperil public interest and which should be permanently enjoined. Appropriate injunctive relief, both permanent and temporary, is demanded.

The answer consists of specific denials and two affirmative defenses. The only specific denials to which reference need be made are those contained in paragraphs X and XI, respectively, which read as follows:

'X. Deny each and every allegation and statement contained in paragraphs or subdivisions of the complaint designated therein '12', except that they admit that the Comptroller of the City of New York had suggested the advisability of considering the sale of the portion of the property involved, other than the waterfront, so as to restore such portion to the tax rolls.

'XI. Deny each and every allegation and statement contained in paragraph or subdivision of the complaint designated therein '16', except that they admit that the matter of the disposal of said City-owned real property, whether for public use, quasi-public use, or otherwise, has not yet been acted upon by the Board of Estimate and that the Board of Estimate might take such action with reference thereto as is authorized by law, after such legal and proper notice and hearing as is required by law.'

For a first affirmative defense, defendants allege that no definitive action has been taken with respect to the subject matter complained of; and, for a second affirmative defense, defendants allege that although no definitive action has as yet been taken, they are vested by law with the power to do all which plaintiffs allege defendants may do with respect to the matter complained of.

Basically, only two issues are presented for determination. They are: (1) Is this action premature? (2) If it is not, does the City have the power, under existing law, to do the acts sought to be enjoined?

Defendants contend most strongly that this action is premature since the Board of Estimate has made no definitive decision as to what disposition should be made of the Neponsit tract. But such a decision seems not to be require in order to entitle a taxpayer to maintain an action under section 51 of the General Municipal Law. That section provides, in pertinent part, that an action may be maintained by a taxpayer 'to prevent any illegal official act' on the part of one acting on behalf of a municipal corporation (emphasis supplied). True, mere illegality is not enough; 'it must appear that in addition to being an illegal official act the threatened act is such as to imperil the public interests or calculated to work public injury or produce some public mischief.' Altschul v. Ludwig, 216 N.Y. 459, 467, 111 N.E. 216, 218 (emphasis supplied); see also Hurley v. Tolfree, 308 N.Y. 358, 364-365, 126 N.E.2d 279, 282-283. Waste, in a strict sense, need not be shown, but only waste 'in the sense that they [the acts complained of] represent a use of public property or funds for entirely illegal purposes.' Kaskel v. Impellitteri, 306 N.Y. 73, 79, 115 N.E.2d 659, 661. There is no requirement that 'the threatened public injury * * * be measurable in dollars and cents.' Brill v. Miller, 140 App.Div. 602, 607, 125 N.Y.S. 865, 868. When one reflects upon the numerous times that unlawful uses of public parks have been enjoined, e.g., see Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121, 18 A.L.R. 1238; Reid v. City of Fulton, 181 Misc. 711, 47 N.Y.S.2d 185, affirmed 269 App.Div. 894, 57 N.Y.S.2d 263; Williams v. Hylan, 126 Misc. 807, 215 N.Y.S. 101, affirmed 217 App.Div. 727, 216 N.Y.S. 936; Tompkins v. Pallas, 47 Misc. 309, 95 N.Y.S. 875, there would seem little need for discussion of the proposition that unlawful sales of such parks may also be...