
    Fieldston Property Owners’ Association, Inc., Appellant, v. City of New York et al., Respondents.
    Argued December 1, 1965;
    decided December 30, 1965.
    
      Osborne A. McKegney for appellant.
    I. Sections 435 of the New York City Charter and 1642 of the New York Vehicle and Traffic Law, insofar as said statutes purport to authorize the police or traffic departments of the City of New York to regulate traffic and, in particular, to permit parking of motor vehicles on appellant’s privately owned streets, are unconstitutional as taking private property without just compensation. (People v. Rubin, 284 N. Y. 392; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; United States v. General Motors Corp., 323 U. S. 373; Delaware, L. & W. R. R. v. Morristown, 276 U. S. 182.) II. Sections 435 of the New York City Charter and 1642 of the New York Vehicle and Traffic Law, insofar as said statutes purport to authorize the police or traffic departments of the City of New York to regulate traffic and, in particular, to permit parking of motor vehicles on appellant’s privately owned streets, are unconstitutional as impairing the obligations of contract. (Fletcher v. Peck, 6 Cranch [10 U. S.] 87; Grand Trunk Western Ry. v. South Bend, 227 U. S. 544.) III. Neither the New York City Charter (§ 435) nor the State Vehicle and Traffic Law (§ 1642) authorizes the traffic or the police departments to permit parking on appellant’s privately owned streets. (Cogswell v. New York, N. H. & H. R. R. Co., 103 N. Y. 10; Ackerman v. True, 175 N. Y. 353.)
    
      Leo A. Larkin, Corporation Counsel (Milton H. Harris and Seymour B. Quel of counsel), for respondents.
    I. The privately owned streets of the Fieldston community are burdened by street easements in favor of the. public. Consequently, the streets are public highways, subject to municipal traffic regulation, which includes regulation of parking. The challenged regulation, neither a, taking of private property nor an impairment of appellant’s contracts with its members, is a valid exercise of police power. (People v. Rubin, 284 N. Y. 392; City of Clayton v. Nemours, 353 Mo. 61, 323 U. S. 684; Matter of City of New York [Decatur St.], 196 N. Y. 286; Matter of City of New York [Braddock Ave.], 278 N. Y. 163; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Delaware, L. & W. R. R. v. Morristown, 276 U. S. 182.) II. A parking regulation is a valid exercise of police power. III. A parking regulation does not impair obligation of contract. (Ogden v. Saunders, 12 Wheat. [25 U. S.] 213.)
   Fuld, J.

The plaintiff owns the streets here involved in fee and has obligated itself, by contracts with the abutting homeowners, to maintain and repair them until such time as title is acquired by the city. Although the plaintiff has permitted the public to drive on and over the streets for many years, the city has neither taken title nor ever sought to keep them in repair at public expense. The gravaman of the complaint is that the municipal authorities have taken it upon themselves to permit, as well as prohibit, public parking on these privately owned streets and this, the plaintiff claims, amounts to a taking of “ private property * * * for public use without just compensation ” (N. Y. Const., art. I, § 7, subd. [a]; see U. S. Const., 5th and 14th Amdts.) and an impairment of the contractual obligation existing between the plaintiff and the abutting homeowners (U. S. Const., art. I, § 10).

To the extent that the municipality prohibits parking on these streets, we see no constitutional infirmity in the applicable statutes which empower the city to “ prohibit, restrict or regulate traffic ” on the highways — including a “ private road open to public motor vehicle traffic ” (Vehicle and Traffic Law, § 1642) — for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health ” (New York City Charter, § 435). These are appropriate objectives for exercise of state police power and, undoubtedly, the power tp regulate traffic” includes the power to prohibit parking ”. (See People v. Rubin, 284 N. Y. 392.) Since the city acknowledges that its parking regulations are ‘ ‘ prohibitive ” rather than permissive ”, we are not required to decide whether, under the Federal and State Constitutions, it may sanction parking on these privately owned streets over the plaintiff’s objection. The plaintiff is entitled to a declaration, therefore, that municipal regulation of parking on these streets does not prevent the plaintiff, as the owner of the fee, from barring parking altogether. The police, of course, are obligated (and empowered) to enforce only the city parking regulations but the plaintiff, on proper notice, may assure compliance with its rules by rigorous use of traditional common-law remedies.

The order appealed from should be reversed and the matter remitted to the Supreme Court, Bronx County, for the entry of a judgment declaring the rights of the parties in accordance with this opinion.

Burke, J. (dissenting).

The order should be affirmed. This case comes within the rule that one who has availed himself of the benefits of a statute cannot thereafter attack it. Here the property owners and the city have given the New York City Charter and the Vehicle and Traffic Law a practical construction for over a quarter of a century. When it had seemed advantageous to the property owners, they freely recognized the city’s authority and concomitant power to allow and regulate parking in their community. Now they think that they made a bad bargain. As was said in Mayor of City of N. Y. v. Manhattan Ry. Co. (143 N. Y. 1, 26), “ once such waiver has been made and such consent been given, the party so waiving and consenting is forever concluded thereby. Especially should this be so where the party takes benefits granted by the act.” This theory was also espoused in City of Clayton v. Nemours (353 Mo. 61, 65-66, app. dsmd. 323 U. S. 684 [1945]): “ Defendant’s basic premise is wrong. Instead of the municipality appropriating private property to a public use, there was evidence that * * * [the street] was devoted to a public use by the owners thereof and the municipality thereafter, exercising its governmental function referable to the police power, regulated in a reasonable manner such public user for the protection and in the interest of the public safety, health and welfare.”

The court should not now compel the city to exercise its police power as circumscribed by the property owners who voluntarily opened the streets to the public.

Chief Judge Desmond and Judges Dye, Van Voorhis and Scileppi concur with Judge Fuld; Judge Burke dissents and votes to affirm in an opinion in which Judge Bergan concurs.

Order reversed and matter remitted to the Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein. 
      
      . In an earlier action against persons actually parking on the streets, we refused to pass upon “ plaintiff’s rights with respect to police participation connected with parking ” absent joinder, as parties, of the City of New York or its officials. (Fieldston Prop. Owners’ Assn. v. Bianchi, 13 N Y 2d 699, 700.)
     