
    In the Matter of Ralph J. Ciminera, Respondent, against Henry A. Sahm et al., Constituting the Town Board of North Hempstead, County of Nassau, et al., Appellants.
    Argued April 29, 1958;
    decided June 25, 1958.
    
      James L. Dowsey, Jr., Town Attorney (Walter E. Beverly, Jr., of counsel), appellant in person and for Henry A. Sahm and others, appellants.
    
      
      Charles Belous for respondent.
   Per Curiam.

This proceeding was brought under article 78 of the Civil Practice Act to compel the town officials of the township of North Hempstead to enforce an Ordinance Relating to Sand Bank and Pit, Topsoil Removal and Other Excavations ”. The petition alleges the validity of the ordinance, the duty of the town officials to enforce the ordinance, and recites specific instances of their refusal, neglect and failure to enforce it. The petition concludes with a prayer for an order directing the town officials to enforce the provisions of the ordinance, and to take steps to collect the license fees due since the enactment of the ordinance. Appellants seek the dismissal of the petition.

The sole question before the court, then, on this appeal, is whether the petition sets forth a good cause of action. We conclude that, on its face, the petition cannot be said to be insufficient as a matter of law (see 22 Carmody-Wait on New York Practice, § 119, and cases cited therein).

If, as claimed on the argument, the controversy has become academic, that contention can be dealt with at Special Term.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Ftjld, J.

(dissenting). It seems to me that to uphold the petition in this case violates settled principles. An order under article 78 of the Civil Practice Act in the nature of mandamus is not the means provided by law to reach the situation described in that petition. Such an order is used to enforce an administrative act positively required to be done by a provision of law, not for the purpose of preventing third parties from doing illegal acts. If anything be clear, it is, as Presiding Justice Non ax wrote in dissent in the Appellate Division, that a proceeding in the nature of mandamus will [not] lie to compel a general course of official conduct, as it is impossible for a court to oversee the performance of such duties. Nor may it be used as a substitute for an action under section 51 of the General Municipal Law to require public officers to answer for waste or injury to public property or funds. (Cf. Matter of Walsh v. La Guardia, 269 N. Y. 437; Matter of International Ry. Co. v. Schwab, 203 App. Div. 68; People ex rel. Clapp v. Listman, 40 Misc. 372.) ”

We should not put our imprimatur on a petition such as the one before us. It may well be that the town officials should have decided to do something about the alleged violation of the town’s ordinance, but to permit a taxpayer to mandate those officials to enforce such a law as the town ordinance here involved would truly open up a Pandora’s box of controversy and litigation.

The order should be reversed and the petition dismissed.

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

Order affirmed.  