
    Franklin Ford, Appellant, v. James J. Walker, as Mayor of the City of New York, and Another, Respondents.
    First Department,
    December 6, 1929.
    
      
      Walter Fairchild, for the appellant.
    
      Vine H. Smith of counsel [W. E. C. Mayer with him on the brief; Arthur J. W. Hilly, Corporation Counsel], for the respondents.
   Per Curiam.

This is an appeal from an order and judgment dismissing for insufficiency the complaint in a taxpayer’s action.

The complaint alleges that the city of New York has created and maintains at public expense a radio broadcasting station known as WNYC pursuant to a resolution of the board of estimate and apportionment authorizing appropriation for its installation and construction as an adjunct to the police and fire departments and such other departments as may require or use such service.” It is further alleged that the station has been used for broadcasting the proceedings at various unofficial and private gatherings and that the defendants are threatening to continue such use. The plaintiff adds that these gatherings were for the purpose of furthering the interests of a religious body.

With respect to these latter averments, the language of the complaint and of the appellant’s brief .is intemperate and discloses a passionate bigotry inappropriate in any document which is to find its place in the records of an American court. We may ignore these allegations, but we may not permit them to undermine the effect of the proper and appropriate allegations which accompany them. The brief for appellant is ordered stricken from the files of the court as scandalous and irrelevant.

The city has no right to use its money for private purposes. (N. Y. Const, art. 8,'§ 10.) The board of estimate and apportionment was careful not to violate this provision when it adopted the resolution authorizing the construction of the broadcasting station. The resolution distinctly provided that that station was to be used as an adjunct to the police and fire departments and to such other departments “ as may require or use such service.” In the absence of further action by the board of estimate and apportionment, the city may expend funds for the maintenance of the broadcasting station only in so far as it is used for the purposes set forth in the resolution authorizing its construction. The uses complained of are not those of the police department, the fire department or any other city department.

We express no opinion upon the merits of the controversy. We hold only that the complaint states a cause of action.

For these reasons the order appealed from should be reversed and the motion denied, with leave to the defendants to answer within twenty days.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.

Judgment and order reversed and motion denied, with leave to the defendants to answer within twenty days from service of order, and appellant’s points ordered stricken from the files.  