Ciminera v. Sahm

• Decision Date: 25 June 1958
• Citation: 4 N.Y.2d 400,151 N.E.2d 832,176 N.Y.S.2d 257
• Parties: , 151 N.E.2d 832 In the Matter of Ralph J. CIMINERA, Respondent, v. Henry A. SAHM et al., Constituting the Town Board of North Hempstead, County of Nassau, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 257

176 N.Y.S.2d 257

4 N.Y.2d 400, 151 N.E.2d 832

In the Matter of Ralph J. CIMINERA, Respondent, v. Henry A. SAHM et al., Constituting the Town Board of North

Hempstead, County of Nassau, et al., Appellants.

Court of Appeals of New York.

June 25, 1958.

James L. Dowsey, Jr., Town Atty., Plandome Manor, (Walter E. Beverly, Jr., New York City, of counsel), for appellants.

Charles Belous, Jamaica, for respondent.

PER CURIAM.

This proceeding was brought under article 78 of the Civil Practice Act to compel the town officials of the township of North Hempstead to enforce an 'Ordinance Relating to Sand Bank and Pit, Topsoil Removal and Other Excavations'. The petition alleges the validity of the ordinance, the duty of the town officials to enforce the ordinance, and recites specific instances of their refusal, neglect and failure to enforce it. The petition concludes with a prayer for an order directing the town officials to enforce the provisions of the ordinance, and to take steps to collect the license fees due since the enactment of the ordinance. Appellants seek the dismissal of the petition.

The sole question before the court, then, on this appeal, is whether the petition sets forth a good cause of action. We conclude that, on its face, the petition cannot be said to be insufficient as a matter of law (see 22 Carmody-Wait on New York Practice, § 119, and cases cited therein).

If, as claimed on the argument, the controversy has become academic, that contention can be dealt with at Special Term.

Accordingly, the order the Appellate Division should be affirmed, with costs.

FULD, Judge (dissenting).

It seems to me that to uphold the petition in this case violates settled principles. An order under article 78 of the Civil Practice Act in the nature of mandamus is not the means provided by law to reach the situation described in that petition. Such an order is used to enforce an administrative act positively required to be done by a provision of law, not for the purpose of preventing third parties from doing illegal acts. If anything be clear, it is, as Presiding Justice Nolan wrote in dissent in the Appellate Division, that (4 A.D.2d 749, 164 N.Y.S.2d 812) 'a proceeding in the nature of mandamus (will not) lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties. Nor may it be used as a substitute for an action under section 51 of the General Municipal Law to require...