
    In the Matter of J. Gilbert Maurer, Individually and as President of U. S. Route 9 Improvement Association, Inc., and on Behalf of Himself and All Other Residents and Property Owners in the Towns of Clifton Park and Halfmoon, County of Saratoga, Similarly Situated, et al., Petitioners, against J. Burch McMorran, Individually and as Superintendent of the Department of Public Works of the State of New York, Respondent.
    Supreme Court, Albany County,
    November 24, 1959.
    
      Conway, Conway S Conway (Edward 8. Conway of counsel), for petitioners.
    
      Louis J. LefJcowits, Attorney-General (Arthur W. Mattson, Joseph A. Romano, and Grace K. Banoff of counsel), for respondent.
   Roscos V. Elsworth, J.

Petitioners in this article 78 proceeding seek an order directing the Superintendent of the Department of Public Works of the State of New York to re-establish the approaches to private lands along Route 9 in the Towns of Clifton Park and Halfmoon in the County of Saratoga in such a manner as not to destroy the access enjoyed by the property owners prior to the reconstruction of U. S. Route 9. Respondent has moved to dismiss the petition as matter of law on various grounds.

What petitioners seek is the same access' they had to their properties before reconstruction of Route 9. Access has been reduced by the construction of ditches and gutters in front of lands of petitioners. They claim that under section 54-a of the Highway Law they are entitled upon their demand to the precise re-establishment of access as existing prior to reconstruction. By its very terms said statute does not create a mandatory duty of the re-establishment of the status quo. Nor does logic point to the existence of such a mandatory duty. Access must be collated by the Superintendent with the construction of ditches for drainage purposes, the improvement of sight conditions and the removal of other hazards to the traveling public.

There is no such showing under the petition herein of a violation of duty entitling petitioners to the mandamus relief sought. The petition accordingly is dismissed.

In view of the foregoing determination it has not been deemed necessary to pass on the question of whether petitioner J. Gilbert Maurer lacked legal capacity to institute this proceeding except in his own individual behalf.

Submit order.  