Sengelaub v. Town of Smithtown

Decision Date12 April 1961
Citation214 N.Y.S.2d 573,29 Misc.2d 655
PartiesFrances SENGELAUB, as a taxpayer of the Town of Smithtown, Suffolk County, New York Plaintiff, v. TOWN OF SMITHTOWN, Robert A. Brady, Supervisor, Paul T. Given, Councilman, Otto H. Schubert, Councilman, Peter Nowick, Justice of the Peace, Floyd Sarisohn, Justice of the Peace, as members of the Town Board of the Town of Smithtown, Colonial Sand and Stone Co., Inc., Frank L. Kelly and Robert A. Brady, Individually, Defendants.
CourtNew York Supreme Court

Henry G. Wenzel, III, Bay Shore, for plaintiff.

Bernard J. Campbell, Smithtown, for defendants Town of Smithtown, Robert A. Brady, Supervisor, Paul T. Given, Councilman, Otto H. Schubert, Councilman, Peter Nowick, Justice of Peace, as members of Town Board of Town of Smithtown.

Cahn & Cahn, Huntington, for defendant Robert A. Brady, individually. Jacob I. Goodstein, New York City, for defendant Colonial Sand & Stone Co., Inc. and Frank L. Kelly.


In this taxpayer's action pursuant to the General Municipal Law, § 51, two motions are made by defendants to dismiss the complaint for insufficiency. One motion is made on behalf of the Town Board of the Town of Smithtown and the other on behalf of defendant Brady. The remaining defendants in the action are Colonial Sand & Stone Co ., Inc., hereinafter referred to as Colonial, and one Frank L. Kelly, an officer of that corporation.

The complaint alleges that on August 12, 1958, the town adopted a resolution to purchase approximately 28 acres of real property from Colonial for a price of $21,248.21, pursuant to the terms of a contract of sale dated May 23, 1958. The stated purpose of the acquisition was a site for a public dump. However, the contract also provided, by clauses to survive delivery of the deed, that the town would lease back one portion of the acreage to Colonial and permit it to continue its sand and gravel excavation operations, including the erection and use thereon of a concrete mixing plant. The term of the lease is described in the contract as 'for such period of time as the premises are used by Colonial either for processing sand and gravel or for a concrete mixing plant.' (Para. 6.) The contract further provided that, with respect to another portion of the acreage, Colonial would have the right by permit to excavate and remove sand and gravel for a period of ten years, except that the town agreed to extend this limitation in the event 'by reasons beyond the control of Colonial, such as force majeurs, strike, war, emergency, calamity, depression, or recession, curtailing the use of sand and gravel for construction purposes, Colonial cannot remove the material within such ten years, then the Town will grant permits beyond the ten year period for the time equivalent to that time lost.' (Para. 1.) Other provisions of the contract provided that Colonial would pay the town a fixed royalty for each cubic yard of material excavated and would erect a fence around three sides of the perimeter to be excavated. The rental to be paid by Colonial for the occupation of the land was an amount equivalent to the town real estate taxes.

On October 7, 1958, a referendum held in the town approved the resolution of August 12, 1958. The complaint alleges that the text of the proposition was in the form:

'Shall the resolution adopted by the Town Board of the Town of Smithtown on the 12th day of August, 1958, authorizing the said Town to acquire and finance the acquisition of a site of approximately 28 acres including a modern fence for a public dumping ground in and for said Town, upon which a sanitary land fill operation is proposed, an (sic) authorized expenditure of $21,500.00 therefor, be approved.'

The lease back and excavation permit arrangements in favor of Colonial were not specifically referred to in the proposition. The complaint further alleges that the aforementioned contract of sale was not on file in the town Clerk's Office at the time of the referendum, nor had it been published or otherwise made available to the voters. Thereafter and on February 16, 1960, the town adopted a resolution authorizing the consummation of the purchase and, on the same date, a deed to the premises was executed by defendant Brady, on behalf of the town, and Kelly, on behalf of Colonial.

The foregoing deed, made a part of the complaint by reference, contains a reservation in favor of Colonial permitting it to continue to excavate and remove sand from and operate a concrete ready mix plant on a portion of the premises. Although the description of the outside perimeter of the property contained in the deed conforms to the contract description, there is some variance as between the contract and deed descriptions of the two interior parcels to which Colonial had contracted for excavation permission and a lease, respectively, and the deed reserves to Colonial excavation rights over a portion of the property which, according to the contract, was to be conveyed in fee and then leased back.

The concluding paragraphs of the complaint, insofar as pertinent, allege, inter alia, that as a result of the transaction described above, the Town is permitting the removal of valuable sand and gravel from town lands by a private enterprise, without the knowledge or approval of the voters, in violation of Section 145 of the Highway Law; that the deed does not conform to the contract approved by the voters at the referendum due to variations in the descriptions of the interior parcels and the legal relations created; that the town's failure to file the contract of sale vitiated the referendum of October 7, 1958; that Colonial has not complied with the town's regrading and excavation ordinance or the terms of the aforesaid contract and, that as a result, the funds and estate of the town have suffered waste and injury and the town has been damaged in the sum of $160,000, for materials illegally removed, plus the $21,248.21 paid for the conveyance. Plaintiff seeks a judgment ordering Colonial to account and pay for the material it has removed from the property and to repay to the town the $21,248.21 consideration it received for the property, and, in default thereof, that Kelly and Brady be held personally responsible for the waste. The complaint also prays that the Town reconvey the property to Colonial.

Upon a motion such as this, the court accepts as true all the relevant allegations of fact and the reasonable inferences that may be drawn therefrom. Schwartz v. Heffernan, 304 N.Y. 474, 482, 109 N.E.2d 68, 70; but not the pleader's legal conclusions nor his interpretation of the statutes involved. Hanna v. Lichtenhein, 225 N.Y. 579, 122 N.E. 625; McCormick v. Westchester Lighting Co., 142 Misc. 27, 252 N.Y.S. 849. The court is not concerned whether the plaintiff will be able to prove the allegations of the complaint; its only concern is whether, assuming the truth of the facts pleaded, the pleading, liberally construed, states a cause of action in some recognizable form. Howard Stores Corp. v. Pope, 1 N.Y.2d 110, 114, 150 N.Y.S.2d 792, 795.

Redress by a taxpayer pursuant to Section 51 of the General Municipal Law may only be had '* * * when the official acts complained of are found to be corrupt, fraudulent, done in bad faith * * *, or constitute a waste of public property in the sense that they...

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3 cases
  • Gaynor v. Rockefeller
    • United States
    • New York Supreme Court — Appellate Division
    • 21 Abril 1964
    ...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 expen......
  • Starburst Realty Corp. v. City of New York
    • United States
    • New York Supreme Court
    • 18 Diciembre 1985
    ...159, 439 N.Y.S.2d 648 The same rules of pleading applicable to any other action apply to taxpayers' suits. (Sengelaub v. Town of Smithtown, 29 Misc.2d 655, 660, 214 N.Y.S.2d 573 The allegation here does not specify the representations to which it refers nor to any other particulars. The all......
  • Nustoria Realty Corp. v. Town of Brookhaven
    • United States
    • New York Supreme Court
    • 22 Octubre 1962 will result in waste of public funds or will otherwise produce some public injury or mischief.' (Sengelaub v. Town of Smithtown, 29 Misc.2d 655, 658, 659, 214 N.Y.S.2d 573, 578). 'The mere illegality of the official act in and of itself does not justify injunctive relief at the request o......

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