DiPaola v. City of Glen Cove
| Citation | 21 A.D.2d 678,250 N.Y.S.2d 229 |
| Parties | Andrew J. DiPAOLA et al., Respondents, v. The CITY OF GLEN COVE et al., Appellants. |
| Decision Date | 11 May 1964 |
| Court | New York Supreme Court Appellate Division |
Melvin H. Heiko, Garden City, for appellants.
Sidney W. Rothstein, New York City, for respondents.
Before BELDOCK, P.J., and UGHETTA, BRENNAN, RABIN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action pursuant to statute (General Municipal Law, § 51), in which plaintiffs seek: (1) to enjoin defendants from violating section 165.00 of the Local Finance Law, and (2) to declare void the 1964 budget of the City of Glen Cove because it had been improperly adopted by the defendants, the defendants appeal from an order of the Supreme Court, County of Nassau, dated November 6, 1963, which denied their motion to dismiss the complaint and for summary judgment pursuant to the Civil Practice Law and Rules (Rule 3211, subd. (a), par. 7; Rule 3212).
Order modified as follows: (1) by striking out the provision denying the motion in its entirety; and (2) by substituting therefor a provision denying the motion as to the first cause of action and granting the motion as to the second cause of action, with leave to serve an amended complaint. Such amended complaint may be served, if plaintiffs be so advised, within thirty days after entry of the order hereon. As so modified, order affirmed, without costs.
By their first cause of action, plaintiffs, pursuant to section 51 of the General Municipal Law, seek to enjoin defendants, comprising the Common Council of the City of Glen Cove, from using surplus proceeds of capital obligations for any purpose other than that for which the obligations were issued (Local Finance Law, § 165.00). Though this cause of action does not expressly allege waste or other public injury, we conclude that it is legally sufficient. From its allegations the inference may fairly be drawn that the marketability of the city's capital obligations will be diminished by illegality which decreases funds from which the Legislature has assured payment (cf., Altschul v. Ludwig, 216 N.Y. 459, 466-467, 111 N.E. 216, 218).
However, in our opinion, the second cause of action, which is also based on section 51 of the General Municipal Law, is insufficient. In that cause of action the plaintiffs allege only that, in violation of the city's charter, the city's 1964 budget was not adopted by defendants at a public meeting of which the public had been given notice...
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...Law § 51 alleging unlawful expenditures and requesting an accounting to be legally sufficient ( see DiPaola v. City of Glen Cove, 21 A.D.2d 678, 250 N.Y.S.2d 229 [2d Dept. 1964], appeal dismissed14 N.Y.2d 488, 253 N.Y.S.2d 1025, 202 N.E.2d 156 [1964] ). The second cause of action for declar......
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