Dorsey v. Stuyvesant Town Corp.

• Citation: 299 N.Y. 512,87 N.E.2d 541
• Parties: DORSEY et al. v. STUYVESANT TOWN CORPORATION et al. POLIER v. O'DWYER, Mayor, et al.
• Decision Date: 19 July 1949
• Court: New York Court of Appeals

299 N.Y. 512

87 N.E.2d 541

DORSEY et al.

v.STUYVESANT TOWN CORPORATION et al.

POLIER

v.O'DWYER, Mayor, et al.

Court of Appeals of New York.

July 19, 1949.

Appeal from Supreme Court, Appellate Division, First Department.

Separate actions by Joseph R. Dorsey and others, suing on behalf of themselves and others similarly situated, and by Shad Polier, as Taxpayer of the City of New York, against Stuyvesant Town Corporation, William O'Dwyer, as Mayor of the City of New York, and others, to enjoin defendants from refusing, withholding from or denying to any of the plaintiffs or others similarly situated any apartments in a certain housing project because of race or color of such persons. From two judgments of the Appellate Division of the Supreme Court in the first Judicial Department entered January 5, 1949, 274 App.Div. 992, 85 N.Y.S.2d 313, unanimously affirming (1) a judgment of the Supreme Court in the first action in favor of defendants, entered in New York County upon orders of the court (Benvenga, J.; 190 Misc. 187, 74 N.Y.S.2d 220) granting a motion by defendants dismissing the complaint for insufficiency under rule 112 of the Rules of Civil Practice and (2) a judgment of the Supreme Court in the second action, in favor of defendants, entered in New York County (Benvenga, J.) granting a motion by defendants for an order dismissing the complaint for insufficiency under rule 106 of the Rules of Civil Practice, plaintiffs appeal on constitutional grounds.

Judgment in first action affirmed, and appeal in second action dismissed.

FULD, J., LOUGHRAN, C. J., and DESMOND, J., dissenting. Charles Abrams, New York City, Shad Polier, in person, Thurgood Marshall, Joseph B. Robison and Will Maslow, New York City, for Joseph R. Dorsey and others, appellants.

John P. Walsh, New York City, for Friendship House of Harlem, amicus curiae, in support of appellants' position.

Carl Rachlin, New York City, and Lester C. Migdal, Brooklyn, for Citizens Housing & Planning Council, amicus curiae, in support of appellants' position.

Paul L. Ross, New York City, for Town and Village Tenants Committee to End Discrimination in Stuyvesant Town, amicus curiae, in support of appellants' position.

Andrew D. Weinberger, New York City, for the board of Home Missions of the Congregational and Christian Churches and others, amici curiae, in support of appellants' position.

Paul O'Dwyer and Lester M. Levin, New York City, for New York Chapter of National Lawyers Guild, amicus curiae, in support of appellants' position.

Samuel Seabury, C. Frank Reavis, Jeremiah M. Evarts, George Trosk, Joseph C. Simpson and Churchill Rodgers, New York City, for Stuyvesant Town Corporation and another, respondents.

John P. McGrath, Corporation Counsel, New York City (William S. Lebwohl, Seymour B. Quel and Phillip V. Sherman, New York City, of counsel), for City of New York, respondent.

BROMLEY, Judge.

This appeal, involving two actions upon a consolidated record, raises the important question of whether a corporation organized under the Redevelopment Companies Law, McK. Unconsol. Laws, s 3401 et seq., has the privilege, admittedly possessed by an ordinary private landlord, to exclude Negroes from consideration as tenants. Appellants deny that respondents Stuyvesant Town Corporation and Metropolitan Life Insurance Company have such a privilege. They contend that these respondents are subject to the restraints of the equal protection clauses of the State and Federal Constitutions and that in their selection of tenants they cannot lawfully discriminate against Negroes, a policy which has been adhered to in renting apartments in the Stuyvesant Town development in New York City. Since the constitutional provisions referred to impose restraints on State action only, and not on private action, the precise question to be decided is whether Stuyvesant and Metropolitan in the circumstances of this appeal are subject to the constitutional limitations applicable to State action.

The two actions involved in this appeal were brought simultaneously. In the Dorsey suit, plaintiffs are Negro veterans who have applied for apartments. In the Polier suit, plaintiff is a taxpayer. In both actions plaintiffs seek to enjoin Stuyvesant and Metropolitan from denying any of their accommodations and facilities in Stuyvesant Town to any person because of that person's race or color. In the Polier action, plaintiff seeks, in addition, to enjoin the City of New York from granting tax exemption to, and further performing a contract with, Stuyvesant and Metropolitan unless they cease discriminating against Negroes. Defendants' motions for judgment on the pleadings were granted below and judgments of dismissal unanimously affirmed by the Appellate Division, First Department. Since appellant Polier's status as a taxpayer does not support an action to challenge as unconstitutional the acts of respondent companies and officials, Bull v. Stichman, 273 App.Div. 311, 78 N.Y.S.2d 279, affirmed 298 N.Y. 516, 80 N.E.2d 661,his appeal does not present the constitutional question essential to our jurisdiction, Civil Practice Act, s 588, subd. 1, cl. (a), and must be dismissed. Subsequent reference to appellants will indicate plaintiffs in the Dorsey suit, and to respondents will indicate Stuyvesant and Metropolitan.

Stuyvesant Town was built pursuant to a contract between the City of New York, Metropolitan and its wholly owned subsidiary Stuyvesant. The latter was organized by the former in 1943 as a redevelopment company under the Redevelopment Companies Law. Stuyvesant is a private corporation, all of its stock and debentures being owned and all of its working capital having been provided by Metropolitan. The entire cost of acquisition of the land in the project area and of the construction project has been advanced by Metropolitan. It represents an investment of not less than $90,000,000 of private funds held by Metropolitan for the benefit of its more than thirty-three million policyholders.

The project has been constructed in accordance with a plan approved by the city planning commission and the board of estimate of the City of New York, and the contract above referred to was approved by the State Superintendent of Insurance and the board of estimate, pursuant to the requirements of section 15 of the Redevelopment Companies Law, McK. Unconsol. Laws, s 3415.

The problems posed by this appeal require an understanding of the constitutional and statutory provisions applicable to housing in the State of New York. For that reason we proceed to set them forth in some detail. In 1938, the housing article of the State Constitution was adopted by the Constitutional Convention and approved by vote of the People. It is article XVIII, and in section 1 thereof it is provided that: ‘Subject to the provisions of this article, the legislature may provide in such manner, by such means and upon such terms and conditions as it may prescribe for low rent housing for persons of low income as defined by law, or for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas, or for both such purposes, and for recreational and other facilities incidental or appurtenant thereto.’ The two purpose are distinct and different, and Stuyvesant Town involves the clearance and rehabilitation of a substandard and insanitary area and not low rent housing for persons of low income. Murray v. La Guardia, 291 N.Y. 320, 331-332, 52 N.E.2d 884, 888, 889. It may fairly be said that the whole housing article is instinct with the theory, consistent with its two purposes, that low rent housing for persons of low income is to be a function of government and the rehabilitation of substandard areas is to be the function of private enterprise aided by government. Section 2 provides that:

‘For and in aid of such purposes * * * the legislature may: make or contract to make or authorize to be made or contracted capital or periodic subsidies by the state to any city, town, village, or public corporation, payable only with moneys appropriated therefor from the general fund of the state; authorize any city, town or village to make or contract to make such subsidies to any public corporation, payable only with moneys locally appropriated therefor from the general or other fund available for current expenses of such municipality; authorize the contracting of indebtedness for the purpose of providing moneys out of which it may make or contract to make or authorize to be made or contracted loans by the state to any city, town, village or public corporation; authorize any city, town or village to make or contract to make loans to any public corporation; authorize any city, town or village to guarantee the principal of and interest on, or only the interest on, indebtedness contracted by a public corporation; authorize and provide for loans by the state and authorize loans by any city, town or village to or in aid of corporations regulated by law as to rents, profits, dividends and disposition of their property or franchises and engaged in providing housing facilities; authorize any city, town or village to make loans to the owners of existing multiple dwellings for the rehabilitation and improvement thereof for occupancy by persons of low income as defined by law; grant or authorize tax exemptions in whole or in part, except that no such exemption may be granted or authorized for a period of more than sixty years; authorize cooperation with and the acceptance of aid from the United States; grant the power of eminent domain to any city, town or village, to any public corporation and to any corporation regulated by law as to rents, profits, dividends and disposition of its property or franchises and engaged in providing housing facilities.

‘As used in this article, the term ‘public corporation’ shall mean any corporate governmental agency (except a county or municipal corporation) organized pursuant to...