Spadanuta v. Incorporated Village of Rockville Centre

• Decision Date: 09 March 1964
• Citation: 20 A.D.2d 799,248 N.Y.S.2d 405
• Parties: Anthony SPADANUTA, on behalf of himself and all others similarly situated, Appellant-Respondent, v. The INCORPORATED VILLAGE OF ROCKVILLE CENTRE, Harry Lister and Howard Snell, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 405

248 N.Y.S.2d 405

20 A.D.2d 799

Anthony SPADANUTA, on behalf of himself and all others similarly situated, Appellant-Respondent, v. The INCORPORATED VILLAGE OF ROCKVILLE CENTRE, Harry Lister and Howard Snell, Respondents-Appellants.

Supreme Court, Appellate Division, Second Department.

March 9, 1964.

Jules B. St. Germain, Lynbrook, for appellant-respondent.

Gehrig, Ritter & Coffey, Hempstead, for respondent-appellant, Charles G. Ritter, Hempstead, of counsel.

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

MEMORANDUM BY THE COURT.

In a taxpayer's action pursuant to statute (General Municipal Law, § 51), in which only the fourth cause of action now survives (the first three having been previously dismissed--see 33 Misc.2d 499, 224 N.Y.S.2d 963, revd. 16 A.D.2d 966, 230 N.Y.S.2d 69, affd. 12 N.Y.2d 895, 237 N.Y.S.2d 1002, 188 N.E.2d 266), such fourth cause of action seeking to compel the defendant Lister to refund to the defendant Village the sum of $4,300 which it paid to him in 1956 for certain land that it purchased from him by private sale during his tenure of office as mayor of said Village; and in which the defendants Lister and the Village, as a complete defense to such fourth cause of action and as a counterclaim for a declaratory judgment, alleged in their answer that the fair market value of the land was in excess of $4,300 at the time of the conveyance, that the cost of then acquiring such land in a condemnation proceeding would have been substantially greater, and that if defendant Lister should now be directed to return the $4,300 he would be entitled to a reconveyance of the land (which is being used as part of a widened public highway) and the Village would be compelled to reacquire the title to the land at a cost greatly in excess of $4,300, the parties cross-appeal as follows from an order of the Supreme Court, Nassau County, dated July 30, 1963:

(1) Defendants appeal from so much of said order as granted plaintiff's motion: (a) for judgment on the pleadings striking out the answer and the counterclaim of said defendants on the ground that they are insufficient in law; and (b) to amend the ad damnum clause in plaintiff's complaint to include the interest from March 15, 1956 on the $4,300 which plaintiff seeks to compel defendant Lister to refund to the Village.

(2) Plaintiff appeals from so much of said order as directed that the 'entry of judgment * * * be withheld until the issues have been decided by way of a motion for summary judgment or otherwise.' [See 38 Misc.2d 999, 239 N.Y.S.2d 598.]

Order modified on the law by striking out the entire decretal paragraph, and by substituting therefor: (1) a paragraph denying plaintiff's motion insofar as it seeks to amend the ad damnum clause of the complaint so as to include interest; (2) a paragraph granting plaintiff's motion insofar as it seeks judgment on the pleadings with respect to the said fourth cause of action; (3) a paragraph directing the immediate entry of judgment declaring that the deed, dated February 25, 1956, which was delivered by defendant Lister to the Village and which was recorded on March 30, 1956, is null and void and ineffective to vest title to the land in the Village, and directing that such deed be canceled of record; and (4) a paragraph directing the defendant Lister, within thirty days after entry of the judgment, to refund to the Village, without interest, the sum of $4,300 which he received from the Village for his invalid conveyance of his land. As so modified, order, insofar as appealed from by the respective pa...