Policemen's Benev. Ass'n of Westchester County, Inc. v. Board of Trustees of Village of Croton-on-Hudson

• Decision Date: 25 May 1964
• Docket Number: CROTON-ON-HUDSON
• Citation: 250 N.Y.S.2d 523,21 A.D.2d 693
• Parties: In the Matter of POLICEMEN'S BENEVOLENT ASSOCIATION OF WESTCHESTER COUNTY, INC., and Richard S. Schrader, Petitioners-Appellants, v. The BOARD OF TRUSTEES OF the VILLAGE OF, and Howard Van Pelt, as Chief of Police of the Police Department of the Village of Croton-on-Hudson, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 523

250 N.Y.S.2d 523

21 A.D.2d 693

In the Matter of POLICEMEN'S BENEVOLENT ASSOCIATION OF WESTCHESTER COUNTY, INC., and Richard S. Schrader Petitioners-Appellants, v. The BOARD OF TRUSTEES OF the VILLAGE OF CROTON-ON-HUDSON and Howard Van Pelt, as Chief of Police of the Police Department of the Village of Croton-on-Hudson, Respondents.

Supreme Court, Appellate Division, Second Department.

May 25, 1964.

Morris Weissberg, New York City, and Walter A. Caddell, Ossining, for appellants; Morris Weissberg, New York City, of counsel.

Reavis & McGrath, New York City, for respondent; Carl E. Kaplan, New York City, of counsel.

Before UGHETTA, Acting P. J., and KLEINFELD, CHRIST, HILL and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR, to declare the invalidity of a local law enacted by the Village of Croton-on-Hudson, and for the related injunctive relief stated below, the petitioners appeal from a judgment of the Supreme Court, Westchester County, entered February 6, 1964, which dismissed their petition without prejudice to the institution of a plenary action. The judgment was entered pursuant to a prior order of the court, dated January 24, 1964, which granted respondents' motion, made before answer, to dismiss the petition upon the ground, inter alia, that it was insufficient on its face (CPLR § 7804, subd. [f]; Rule 3211).

Judgment and order reversed, with one bill of costs; and motion to dismiss the petition denied. Respondents' time to answer the petition is extended until thirty days after entry of the order hereon.

One petitioner is the Patrolmen's Benevolent Association of Westchester County, Inc., a membership corporation; the other is a citizen, resident and taxpayer of the Village of Croton-on-Hudson, Westchester County. They bring this article 78 proceeding: (a) to adjudge invalid certain provisions of a local law of said Village, relating to the appointment of special patrolmen; (b) to direct the respondent Board of Trustees to cancel all appointments made under such provisions of the local law; (c) to enjoin the Board from making further appointments thereunder; (d) to direct the Board to require all special patrolmen appointed by it to refrain from performing police duties except in certain instances specified in Section 199-ee of the Village Law and restated in the said local law; (e) to direct the Board to cancel appointments of special patrolmen, made for indefinite periods and without giving preference to eligible persons on an available civil service list, and consequently, in violation of Section 199-ee of the Village Law and of the unchallenged provisions of the said local law; and (f) to direct the Board to make such future appointments for specified periods and with preference to eligible persons on said available civil service list, as required by Section 199-ee of the Village Law and by the unchallenged provisions of the said local law.

On motion of the respondents and without considering the merits, Special Term dismissed the petition on the grounds: (a) that petitioners lacked standing to bring this proceeding because they failed to show that they were personally aggrieved; and (b) that injunctive relief is not available in a proceeding under article 78 of the CPLR.

In our opinion, this determination was erroneous; and the motion to dismiss the petition should have been denied.

One who is a citizen, resident and taxpayer has standing to bring an article 78 proceeding such as the one at bar, even though he does not show a personal grievance or a personal interest in the outcome (Matter of Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65; Matter of Cash v. Bates, 301 N.Y. 258, 93 N.E.2d 835; Matter of Chironna v. Watson, 304 N.Y. 255, 107 N.E.2d 289; Chittenden v. Wurster, 152 N.Y. 345, 363-364, 46 N.E. 857, 862-863, 37 L.R.A. 809; Matter of Kornbluth v. Rice, 250 App.Div. 654, 296 N.Y.S. 182, affd. 275 N.Y. 597, 11 N.E.2d 772). Insofar as our holding in Matter of Ahern v. Board of Supervisors, 7 A.D.2d 538, 185 N.Y.S.2d 669, affd. 6 N.Y.2d 376, 189 N.Y.S.2d 888, 160 N.E.2d 640, may be read to the contrary, we do not now follow it in view of the foregoing holdings and in view of the fact that the Court of Appeals majority in Ahern (supra) specifically based its affirmance on another ground only.

The case of St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15, is distinguishable, since (a) it involved an attack on a State statute, not a municipal ordinance; (b) the acts challenged were those of State officials, not municipal officials; (c) it was a taxpayer's action, not an article 78 proceeding; and (d) it involved a State official's conduct in fiscal matters, not the conduct of municipal officials in non-fiscal matters.

Moreover, injunctive relief such as that sought in the petition at bar is obtainable in an article 78 proceeding (Matter of O'Reilly v. Grumet, 308 N.Y. 351, 358, 126 N.E.2d 275, 278; Matter of Sheridan v. Kennedy, 19 Misc.2d 765, 194 N.Y.S.2d 115, affd. 10 A.D.2d 606, 197 N.Y.S.2d 412, affd. 8 N.Y.2d 794, 201 N.Y.S.2d 805, 168 N.E.2d 133; Matter of Clifford v. Police Commissioner of City of New York, Sup., 152 N.Y.S.2d 923, mod. in other respects 2 A.D.2d 674, 154 N.Y.S.2d 115, mot. for order of reversal as moot den. 6 N.Y.2d 811, 188 N.Y.S.2d 198, 159 N.E.2d 687; Matter of New York Post Corp. v. Leibowitz, 2 N.Y.2d 677, 684, 163 N.Y.S.2d 409, 414, 143 N.E.2d 256, 259; see also: Matter of Astwood v. Cohen, 291 N.Y. 484, 53 N.E.2d 358; Matter of Kraus v. Singstad, 250 App.Div. 384, 294 N.Y.S. 688, mod. in other respects 275 N.Y. 302, 9 N.E.2d 938; Matter of Kornbluth v. Rice, 250 App.Div. 654, 296 N.Y.S. 182, affd. 275 N.Y. 597, 11 N.E.2d 772, supra; Matter of Public Porters Protective and Defense Assn. of New York v. O'Connell, 8 Misc.2d 1001, 168 N.Y.S.2d 350).

In view of the foregoing clear holdings by the Court of Appeals, we are not now following the seemingly contrary determinations banning injunctive relief in article 78 proceedings (cf. Matter of Daniels v Daniels, 3 A.D.2d 749, 160 N.Y.S.2d 133; Matter of Pagano Realty Corp. v. O'Dwyer, 195 Misc. 157, 89 N.Y.S.2d 442, affd. 275 App.Div. 705, 88 N.Y.S.2d 888; Matter of Gapinski v. Zoning Board of...