Gaynor v. Rockefeller

Citation21 A.D.2d 92,248 N.Y.S.2d 792
Parties, 56 L.R.R.M. (BNA) 2210, 49 Lab.Cas. P 51,100 Lloyd GAYNOR, Samuel D. McCain, Andrew Jenkins and Eddie Jenkins, Plaintiffs-Respondents, v. Hon. Nelson A. ROCKEFELLER, Governor of the State of New York, et al., Defendants-Appellants.
Decision Date21 April 1964
CourtNew York Supreme Court Appellate Division

Page 792

248 N.Y.S.2d 792
21 A.D.2d 92, 56 L.R.R.M. (BNA) 2210,
49 Lab.Cas. P 51,100
Lloyd GAYNOR, Samuel D. McCain, Andrew Jenkins and Eddie
Jenkins, Plaintiffs-Respondents,
Hon. Nelson A. ROCKEFELLER, Governor of the State of New
York, et al., Defendants-Appellants.
Supreme Court, Appellate Division, First Department.
April 21, 1964.

Page 796

[21 A.D.2d 93] Joel L. Cohen, New York City, of counsel (Seymour B. Quel, Morgan N. Lipton and John L. Radlein, New York City, with him on the brief; Leo A. Larkin, Corp. Counsel, attorney), for appellants Wagner, Beame, Screvane, Dudley, Perriconi, Stark, Cariello and Maniscalco.

Samuel A. Hirshowitz, New York City, of counsel (George D. Zuckerman, New York City, with him on the brief; Louis J. Lefkowitz, Atty. Gen.), for appellants Governor, State Comptroller and Industrial Commissioner.

Walter M. Colleran, New York City, for appellant unions.

Robert L. Carter, New York City, of counsel (Jerome Rubenstein, New York City, with him on the brief), for respondents.


STEVENS, Justice.

Defendants appeal from so much of order entered December 12, 1963 as denied their respective cross-motions to dismiss the amended complaint

Page 797

on the ground that it fails to state a cause of action, and that the court has not jurisdiction [21 A.D.2d 94] of the subject matter, etc., pursuant to CPLR Rule 3211.

This is a class action for a declaratory judgment and an injunction, brought by four Negroes, citizens of the United States and residents of the State of New York, who have attempted unsuccessfully to gain admittance to certain of defendant union locals (herein unions) or to their apprentice programs. The complaint is in equity and contains three causes of action. The first cause seeks a preliminary injunction pursuant to CPLR § 6301. The second cause seeks a declaratory judgment pursuant to CPLR § 3001, and the third cause is a taxpayer's action brought under Section 51, General Municipal Law, as amended by Laws of 1963, Chapter 528. Broadly, the plaintiffs seeks a declaration of the legal rights and relations of the parties in this controversy and to permanently enjoin them from the commission or omission of certain specified acts. The complaint is directed against three classes or groups of defendants: (1) State officials, (2) City officials, (3) locals of international unions affiliated with AFL-CIO and Locals 1, 2 and 638 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. In the interest of clarity the relief sought as to each will be pointed out and the position taken by each group of defendants in answer thereto will be defined.

The complaint refers particularly to six construction contracts (1 State and 5 City) on which public monies are being expended. Plaintiffs charge the construction work is dominated or controlled by defendant unions whose discriminatory practices bar plaintiffs and the class they represent from membership or admittance to their apprentice program and consequently from employment. Plaintiffs seek to enjoin defendants state officials from further expending public funds on the State contract listed and seek judgment requiring such officials to enforce Sections 43 and 45 of the Civil Rights Law and Section 220-e of the Labor Law with respect to such contract. As to group two, defendants City officials, plaintiffs seek to enjoin them from continuing to expend public funds on the five City contracts enumerated, to enjoin them from entering new contracts in which defendant unions have an interest while such unions continue their policy of racial discrimination, and to direct such City officials to enforce Section 343-8.0 of the Administrative Code of the City of New York with [21 A.D.2d 95] respect to such contracts. The relief sought against the third class of defendants, the unions, is to enjoin such unions from requiring applicants to have sponsors among current or former members preliminary to admittance, to adopt fair tests universally applied for admittance to apprentice training programs, to enjoin defendant unions from using the present list of applicants discriminatorily

Page 798

obtained, and to destroy present lists which are allegedly used as devices of racial discrimination.

Plaintiffs moved upon the amended complaint with supporting affidavits for a preliminary injunction and defendants cross-moved for dismissal of the complaint. Plaintiffs' motion for a preliminary injunction was denied as were defendants' cross-motions, and it is from the order denying such cross-motions that these appeals are taken. Since defendants' appeals do not rest upon the same ground, the position of each group is set forth.

Appellants State officials claim respondents lack standing as personally aggrieved parties to bring this action; that they have adequate legal and administrative remedies available, consequently the present action is untenable; the discriminatory contract complained of cannot be attributed to State action nor support an action against State officials; New York State is an indispensable party but it has not consented to be sued and cannot be made a party; and that the court has no jurisdiction over the person of the Governor.

Appellants City officials assert that primary jurisdiction rests in the State Commission for Human Rights and therefore the court should not entertain jurisdiction; that the unions do not act under color of State authority and their alleged discriminatory policies do not support a cause of action against these officials; no cause of action is stated for injunctive relief; and the complaint is insufficient under Section 51 of the General Municipal Law.

In some instances parallel arguments are advanced by State and City appellants, so their arguments will be considered before considering the unions' position. Before discussing the broader issues involved attention is given first to the third cause, the taxpayer's action, to determine if it is properly maintainable under Section 51 of the General Municipal Law.

A taxpayer's action is purely a creature of statute and Section 51 sanctions court proceedings by a taxpayer 'either to prevent an illegal [official] act against, or waste or injury to, the property of the municipality' (Carpenter v. Wise, 92 Misc. 246, 253, 155 N.Y.S. 996, 1001, aff'd without opinion 173 App.Div. 998, 159 N.Y.S. 1104). The acts complained of must be fraudulent 'or a waste of public property in [21 A.D.2d 96] the sense that they 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, cert. denied 347 U.S. 934, 74 S.Ct. 629, 98 L.Ed. 1085) or where fraud, collusion or bad faith exists (Admiral Realty Co. v. City of New York, 76 Misc. 345, 135 N.Y.S. 384, aff'd 151 App.Div. 888, 135 N.Y.S. 1097, aff'd 206 N.Y. 110, 99 N.E. 241). The term 'waste or injury' as used in Section 51 contemplates more than improvident or unwise spending of public funds (Ziegler v. Chapin, 126 N.Y.

Page 799

342, 27 N.E. 471; Kraushaar v. Zion, Sup., 135 N.Y.S.2d 491); it refers to and includes only illegal, wrongful or dishonest acts (Daly v. Haight, 170 App.Div. 469, 156 N.Y.S. 538, aff'd 224 N.Y. 726, 121 N.E. 862). The illegal action must be injurious to municipal interests so as to waste public funds or cause public injury (Sengelaub v. Town of Smithtown, 29 Misc.2d 655, 214 N.Y.S.2d 573.)

Plaintiffs complain here of the letting of certain contracts, the making of financial commitments, and the expenditure of public funds by defendants public officials on these contracts. Such contracts may not be attacked by a taxpayer's suit unless shown to be clearly illegal or a waste of public funds (Grace v. Scott, 125 Misc. 660, 211 N.Y.S. 68, aff'd 214 App.Div. 792, 211 N.Y.S. 75). General allegations of wrongdoing or a general assertion of community damage without more is not sufficient (Sengelaub v. Town of Smithtown, supra; Schieffelin v. Craig, 183 App.Div. 515, 170 N.Y.S. 603). While plaintiffs allege that the exclusion of qualified Negroes from the possibility of public employment solely because of race causes public injury not only to...

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