
    Stahl Soap Corporation, Respondent, v. City of New York et al., Appellants.
    Argued October 7, 1958;
    decided January 22, 1959.
    
      
      Peter Campbell Brown, Corporation Counsel (Irving Genn, Harry E. O’Donnell and Benjamin Offner of counsel), appellant in person and for City of New York and others, appellants.
    I. The resolution of the Board of Estimate discontinuing a portion of Stanwix Street contains a sufficient statement of the public necessity" for the closing. The courts may not look beyond it to entertain allegations impugning the motives and purposes of the board in the exercise of its legislative powers. (Matter of City of New York [84th St.], 189 App. Div. 315; Kaskel v. Impellitteri, 306 N. Y. 73, 347 U. S. 934; Matter of City of New York [Ely Ave.], 217 N. Y. 45; McCabe v. City of New York, 213 N. Y. 468; Matter of Asness v. City of New York, 5 Misc 2d 779, 4 A D 2d 677; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Bleecker Luncheonette v. Wagner, 286 App. Div. 828, 309 N. Y. 1029; Matter of Mayor, 28 App. Div. 143, 157 N. Y. 409; Matter of City of New York [Gillen Place], 304 N. Y. 215.) II. The street having been found unnecessary, the public interest was served by its closing. Moreover, the action of the Board of Estimate Avas in accord with a general plan for the improvement of the area. (Matter of Mayor, 28 App. Div. 143; Matter of City of New York [Gillen Place], 304 N. Y. 215; State v. Elizabeth, 54 N. J. L. 462.) III. The complaint fails to show facts constituting illegality and waste, and it does not allege fraud or corruption. It therefore lacks the necessary elements of a taxpayer’s action. (Altschul v. Ludwig, 216 N. Y. 459; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Talcott v. City of Buffalo, 125 N. Y. 280; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Campbell v. City of New York, 244 N. Y. 317; Kelly v. Merry, 262 N. Y. 151.)
    
      Walter H. Liebman, Herbert Robinson and Julian S. Perlman for Liebmann Breweries, Inc., appellant.
    I. The power of the Board of Estimate to close a street or portion thereof being-clear, its exercise of the power in the case at' bar cannot be reAÚewed on the basis of the complaint herein. (Bacon v. Miller, 247 N. Y. 311; Kaskel v. Impellitteri, 306 N. Y. 73; Davidson v. City of Elmira, 180 Misc. 1052, 267 App. Div. 797, 292 N. Y. 723; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Talcott v. City of Buffalo, 125 N. Y. 280; McCabe v. City of New York, 213 N. Y. 468; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Campbell v. City of New York, 244 N. Y. 317; Bleecker Luncheonette v. Wagner, 286 App. Div. 828, 309 N. Y. 1029.)
    
      
      Louis N. Field for respondent.
    I. The complaint states facts sufficient to constitute a good cause of action. II. The city does not have “full power to discontinue and close streets.” (Browne v. City of New York, 241 N. Y. 96.) III. The city holds its streets in trust for the general public. (People v. Grant, 306 N. Y. 258; Matter of Smith v. Gagliardi, 286 App. Div. 873; Peterson v. City of New York, 260 N. Y. 156; Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737, 229 N. Y. 570; American Dock Co. v. City of New York, 174 Misc. 813, 261 App. Div. 1063, 286 N. Y. 658; Bradley v. Degnon Contr. Co., 224 N. Y. 60; Matter of Mayor, 28 App. Div. 143, 157 N. Y. 409; Browne v. City of New York, 213 App. Div. 206, 241 N. Y. 96.) IV. The city has been delegated only limited powers over its streets. V. The city has no power to close portion X of Stanwix Street under section E15-3.0 of the Administrative Code. (Schieffelin v. Hylan, 236 N. Y. 254; People ex rel. Failing v. Commissioners of Highways, 53 Barb. 70; Matter of Byers, 72 N. Y. 1; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451.) VI. If the city did not act within the limits of section E15-3.0 of the Administrative Code, its action was wholly illeg’al and ultra vires. (People ex rel. Hotchkiss v. Supervisors, 65 N. Y. 222; People ex rel. City of Olean v. Western N. Y. & P. Traction Co., 214 N. Y. 526.) VII. The complaint, being predicated on illegality, need not allege or show fraud or corruption. (Talcott v. City of Buffalo, 125 N. Y. 280; Kaskel v. Impellitteri, 306 N. Y. 73.) VIII. The complaint, with the proceeding’s before the Board of Estimate and City Planning Commission incorporated therein, still sets forth a good cause of action. (Matter of City of New York [Ely Ave.], 217 N. Y. 45; McCabe v. City of New York, 213 N. Y. 468; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, 235 N. Y. 600; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Altschul v. Ludwig, 216 N. Y. 459; Good Humor Corp. v. City of New York, 290 N. Y. 312; Matter of City of New York [Gillen Place], 304 N. Y. 215.)
   Per Curiam.

In this taxpayer’s action to nullify the closing and discontinuance of a single interior block of Stanwix Street, which is five blocks long, extending from Bushwick Avenue to Flushing Avenue in Brooklyn, and for related relief, we agree with the Appellate Division that the complaint as a pleading, read in the light of the exhibits, states a cause of action.

In a proper case, such an action is authorized (McCutcheon v. Terminal Sta. Comm., 217 N. Y. 127, 137, 141). Redress may only be had, however, when the official acts complained of are found to be corrupt, fraudulent, done in bad faith (McCutcheon v. Terminal Sta. Comm., supra, p. 148), or constitute a waste of .public property in the sense that they represent the use of Such property “for entirely illegal purposes ”, or where “ there is a total lack of power in defendants, under the law, to do the acts complained of” (Kaskel v. Impellitteri, 306 N. Y. 73, 79, cert. denied 347 U. S. 934; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Altschul v. Ludwig, 216 N. Y. 459; General Municipal Law, § 51).

It is elementary that the State’s power with respect to the discontinance of streets is plenary, and may be exercised directly by the Legislature or delegated by it to a subordinate governmental agency (Fearing v. Irwin, 55 N. Y. 486, 490; 25 Am. Jur., Highways, §' 118). Such power was granted by the Legislature to the City of New York in subdivision a of section E15-3.0 of the Administrative Code of the City of New York. This section authorizes the city to close a street when deemed “necessary in order to more effectually secure and preserve the regularity and uniformity of the streets therein, or where other public necessity requires the closing ”.

The complaint alleges that the closing of the portion of Stanwix Street, a busy and active street in use for over 90 years and an important link in the highway system of the city,, was not for the purpose of more effectually securing and preserving the regularity and uniformity of the streets of the City of New York nor for any other public necessity; that the agreements between the city and the abutting property owner to effectuate such closing were not entered into in good faith, and that the city’s action was unlawful and a waste of its property.

In support of its allegations, plaintiff points to the Journal of Proceedings of the Board of Estimate of the City of New York, which discloses that the board acted upon reports of its Chief Engineer and the Chairman of the Planning Commission. The Chief Engineer reported that the purpose of closing this one interior block of Stanwix Street, which is 50 feet wide and concededly in use for over 90 years, was to permit the release of the city’s interest in the street to the abutting property owner ‘ ‘ that they may assure themselves of the exclusive use of that area for necessary parking and for access to their property ”, and recommended the institution of a closing proceeding “contingent” upon the board’s prior acceptance of agreements with the abutting owner. The Chairman of the Planning Commission reported that the closing of the street was provided for “in order that it may he released to” the abutting property owner “ for industrial expansion ” and inasmuch as said owner desires “ to consolidate its holdings ”.

These undisputed statements, appearing in the minutes of the Board of Estimate, and upon which the board acted, read with the complaint, would seem on their face to contradict the statements of the board that the closing was “in the public interest ” and that the street was “ not essential ”, and, without more, tend to bear out the allegations of the complaint to the effect that the city’s action was unlawful, and that the conditions for the exercise of the board’s power were not present in this case. As Judge Desmond stated in the Kashel case (306 N. Y. 73, 80, supra),

“ One can conceive of a hypothetical case where the physical conditions of an area might be such that it would be irrational and baseless to call it substandard or insanitary [in this case to say that the closing was “ in the public interest ” and that the street was “ not essential ”], in which case, prohahly, the conditions for the exercise of the power would not be present.”

While there is no objection to an owner acquiring title to abutting land in a street “Whenever the city shall have any right, title or interest ” (emphasis supplied) in a street that has been discontinued — indeed, section 383-2.0 of the Administrative Code so provides — a municipality is without power arbitrarily to vacate a street or a part thereof for the sole purpose of benefiting an abutting property owner, and without due regard for the enabling statute (see McCutcheon v. Terminal Sta. Comm., supra, pp. 142-144; 2 McQuillin, Municipal Corporations [3d ed], pp. 131-132; 25 Am. Jur., Highways, § 120; 3 Dillon, Municipal Corporations [5th ed.], § .1160, p. 1838; Elliott, Municipal Corporations [2d ed.], p. 79).

McDonald v. Board of Street Comrs. of Boston (268 Mass. 288), cited in the dissenting opinion, clearly recognizes the exception to the rule that general power to discontinue a public street is vested in the city, for there it was expressly pointed out (p. 294): “So long as it [the board] acts honestly, without abuse of discretion, within the scope of the delegated power and governing principles of law, its decisions are not open to reexamination by the courts.” (Emphasis supplied.)

It may well be that the Board of Estimate acted within its powers in closing the portion of Stanwix Street affected; that upon a trial plaintiff will be unable to establish its cause of action; and the city may demonstrate that there is factual basis for its determination that the street was discontinued because, in the language of the statute, “public necessity requires the closing ’5 and that the closing was not for the sole benefit of the abutting property owner.. We are not now deciding the case upon the merits, but merely holding that the complaint, the allegations of which we must accept as true, read in the light of the exhibits, sufficiently states a prima facie cause of action.

The order appealed from should be affirmed, with costs to abide the event, and defendant given 20 days in which to answer the complaint; the question certified to us should be answered in the affirmative.

Desmond, J. (dissenting).

Since the closing of a public street is a legislative function, this complaint states no cause of action. No citizen or taxpayer can require the courts to decide whether the legislative decision is prudent or in the public interest or whether the legislators’ motives are base or good. Intrusion of o.ur courts into this legislative domain is unprecedented, contrary to settled public policy and not protective of any private right.

Of course, plaintiff says that this closing was without warrant of law but his own pleading cites the statute (Administrative Code of City of New York, § E15-3.0) which delegates this legislative power to the City of New York (see Fearing v. Irwin, 55 N. Y. 486, 490). And although he says that this particular closing is not in the public interest, the Board of Estimate by a nonreversible legislative finding has determined that it is “ in the public interest.” The power to determine such “ questions of necessity or expediency ” is “ political, not judicial, in its nature ” (Matter of City of New York [Ely Ave.], 217 N. Y. 45, 57). Exactly as in Kaskel v. Impellitteri (306 N. Y. 73, 80, cert. denied 347 U. S. 934), “ the situation here actually displayed is one of those as to which the Legislature has authorized the city officials, including elected officials, to make a determination, and the making thereof is simply an act of government, that is, an exercise of governmental power, legislative in fundamental character, which, whether wise or unwise, cannot be overhauled by the courts.” As we said in Kaskel (p. 79), “ since no corruption or fraud is charged * * * a taxpayer, cannot succeed in such a suit, unless there is a total lack of power in defendants, under the law, to do the acts complained of” (see 11 McQuillin, Municipal Corporations [3d ed.], p. 126). In Kaskel, the City Planning Commission had reported to the Board of Estimate and the board had found that the area involved was 1 ‘ substandard and insanitary ’ ’ (General Municipal Law, § 72-lc). In the present case the same Planning Commission officially informed the Board of Estimate that the part of Stanwix Street to be eliminated “ is not essential for frontage, traffic, or any other public purpose.” As we understand plaintiff’s argument and the majority opinion here, the position taken is that this closing could not be “in the public interest” since a report to the board by a City Engineer had recited that the “ purpose ” was to convey the bed of the closed street to respondent Liebmann, owner of the abutting land on both sides of the block, for Liebmann’s own use. Any trial of such an issue must of necessity violate the rule against judicial inquiry into the motives of legislators acting within their powers and must destroy the conclusive presumption that the motives were correct ones (see Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345, 359; Matter of City of New York [Ely Ave.], 217 N. Y. 45, 58, 59, supra). And, once the legislative determination of “ public interest” has been made, a transfer for adequate consideration of the bed of the vacated street to an abutting owner is normal and proper. We took judicial notice in Matter of City of New York (Gillen Place) (304 N. Y. 215, 221) that “ street closings usually result in the ultimate appropriation of the land to private ownership ’

For more than 60 years (Matter of Mayor of City of New York [Deering], 28 App. Div. 143, affd. 157 N. Y. 409) it has been settled that on closing a street “ The city of New York, as owner of the land, may use it for corporate purposes, or, unless it is required for such use, it may sell or dispose of it in the same way as an individual owner might do ” (28 App. Div. 153). In Matter of Mayor of City of New York (Deering) (supra, p. 154), the Appellate Division quoted with approval from Meyer v. Village of Teutopolis (131 Ill. 552) as follows: “ ‘ Nor does it seem material that the vacation is made with the view or intention of vesting the adjoining proprietors with the ownership of the land embraced within the street. That merely goes to the motive by which the act of vacation is performed, and in that, as in all legislative acts, the motives by which the legislative body is actuated are immaterial and cannot be inquired into ’ ” (see, likewise, the leading case of MacDonald v. Board of Street Comrs., 268 Mass. 288). Yet we are here authorizing a trial to discover an intent which is not only undisputed but immaterial as well, since the fact that the vacation of a street is at the instance of an abutter, as it usually is, proves nothing at all (11 McQuillin, Municipal Corporations [3d ed.], pp. 133-134).

A notable decision which disposes of all plaintiff’s contentions is MacDonald v. Board of Street Comrs. (268 Mass. 288, supra). The simple, workable rule has always been in New York as elsewhere that legislative control of the opening and closing of streets is plenary unless there be a taking of private land or a denial of access to an abutter (Smith v. City of Boston, 61 Mass. 254; People v. Kerr, 27 N. Y. 188, 192; Egerer v. New York Cent. & Hudson Riv. R. R. Co., 130 N. Y. 108, 111; Van Aken v. State of New York, 261 N. Y. 360; Dwornik v. State of New York, 283 N. Y. 597; Coffey v. State of New York, 291 N. Y. 494). Mere inconvenience gives no right of action (Reis v. City of New York, 188 N. Y. 58, 67, 68). All of this is set forth with clarity and authority in Municipal Law by Rhyne (p. 439, §§ 18-30).

The much-stressed fact that this closing is of one block only of the street means nothing since the Administrative Code of the City of New York (§ E15-3.0) authorizes the city to close streets “ in whole or in part ” and several of the leading cases cited herein (see Reis v. City of New York, supra), deal with such partial closings.

The order appealed from should be reversed, the motion granted, the certified question answered in the negative, and the complaint dismissed, with costs in this court and in the Appellate Division.

Chief Judge Conway and Judges Froessel, Van Voorhis and Burke concur in Per Curiam opinion; Judge Desmond dissents in an opinion in which Judges Dye and Fuld concur.

Order affirmed, etc.  