
    In the Matter of Keystone Associates, Respondent, v. Charles G. Moerdler, as Commissioner of Buildings of the City of New York, et al., Respondents, and Old Met Opera House Corporation, Appellant. Metropolitan Opera Association, Inc., Respondent, v. City of New York et al., Defendants, and Old Met Opera House Corporation, Appellant.
    Argued November 22, 1966;
    decided December 30, 1966.
    
      
      Simon H. Rif hind, Edward N. Costihyan, William Rand, Daniel J. Sullivan and Robert L. Laufer for appellant in the
    above-entitled proceeding and action.
    I. The six-month delay in demolition dons not constitute a “taking” of property in the constitutional sense hut is an incident to the constitutional exercise by the State of its police powers. (Goldblatt v. Hempstead, 369 U. S. 590; Pierce Oil Corp. v. City of Hope, 248 U. S. 498; Hadacheck v. Los Angeles, 239 U. S. 394; Reinman v. Little Rock, 237 U. S. 171; Murphy v. California, 225 U. S. 623; Powell v. Pennsylvania, 127 U. S. 678; Mugler v. Kansas, 123 U. S. 623; Block v. Hirsh, 256 U. S. 135; L. L. F. Y. 
      
      Co. v. State Housing Rent Comm., 11 N Y 2d 259; People v. Stover, 12 N Y 2d 462; City of New Orleans v. Levy, 223 La. 14; Opinion of Justices, 333 Mass. 773; Matter of Setauket Development Corp. v. Romeo, 18 A D 2d 825.) II. If the six-month delay constitutes a “taking”, respondents are adequately secured by the $200,000 deposit. (Banner Milling Co. v. State of New York, 240 N. Y. 533; Schreibman v. State of New York, 31 Misc 2d 392; People v. Finkelstein, 9 N Y 2d 342; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293, 368 U. S. 12; Farrington v. Pinckney, 1 N Y 2d 74; Gail Turner Nurses Agency v. State of New York, 17 Misc 2d 273; Matter of City of Rochester [McLean], 102 App. Div. 181.) III. No declaration of unconstitutionality is proper in the absence of a hearing to resolve issues of fact. IV. Section 3 of the statute authorizing appellant to acquire the property by condemnation is constitutional. (Society of N. Y. Hosp. v. Johnson, 5 N Y 2d 102; Matter of Pierce, 185 App. Div 212; Matter of Ryers, 72 N. Y. 1; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Home Gas Co. v. Eckerson, 197 Misc. 793; Kaskel v. Impellitteri, 306 N. Y. 73, 347 U. S. 934; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Matter of Niagara, L. & O. Power Co., 111 App. Div. 686.) V. The designation of appellant as “ The Old Met Opera House Corporation ” by the Legislature was not an unconstitutional appropriation of any property rights of plaintiff association. (Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Matter of Albany City Sav. Inst., 116 Misc. 561, 200 App. Div. 848; Rochester Sav. Bank v. Rochester Sav. & Loan Assn., 170 Misc. 983; Buffalo Typewriter Exch. v. McGarl, 240 N. Y. 113; Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173; Sterling Prods. Corp. v. Sterling Prods., 43 F. Supp. 548; Yonkers Sav. Bank v. Yonkers Sav. & Loan Assn., 174 Misc. 973, 262 App. Div. 755; St. Agnes Cemetery v. State of New York, 3 N Y 2d 37; Sawyer v. Town of Southport, 6 A D 2d 553.)
    
      David W. Peck, Samuel Kramer, David Tj. Weissman, Bernard D. Bergreen, Alan G. Weiler and John L. Warden for Keystone Associates, respondent in the above-entitled proceeding. I.
    The statute provides for an unconstitutional taking
    of Keystone’s property without just and certain compensation. (Berman v. Parker, 348 U. S. 26; National Cellulose Corp. v. State of New York, 292 N. Y. 438; Forster v. Scott, 136 N. Y. 577; Chase v. City of Glen Cove, 41 Misc 2d 889; Rand v. City of New York, 3 Misc 2d 769; Roer Constr. Corp. v. City of New Rochelle, 207 Misc. 46; State v. Griggs, 89 Ariz. 70; Miller v. City of Beaver Falls, 368 Pa. 189; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Kimball Laundry Co. v. United States, 338 U. S. 1; United States v. General Motors Corp., 323 U. S. 373; Summers v. City of Glen Cove, 17 N Y 2d 307.) II. Neither section 8 nor section 3 provides just and certain compensation for the taking it authorizes. (Matter of City of New York [Fifth Ave. Coach Lines], 18 N Y 2d 212; Matter of City of Rochester [McLean], 102 App. Div. 181; Brewster v. Rogers Co., 169 N. Y. 73; Kimball Laundry Co. v. United States, 338 U. S. 1; United States v. General Motors Corp., 323 U. S. 373.) III. Even if the statute were deemed otherwise valid, its failure to specify standards for the exercise of administrative discretion and its vagueness as to how long demolition may he delayed render it unconstitutional. (Matter of Small v. Moss, 279 N. Y. 288; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184.)
    
      Jacob L. Isaacs, Leon Lauterstein and Henry W. Lauterstein for Metropolitan Opera Association, Inc., respondent in the above-entitled action.
    I. The intention and effect of chapter 691 is to immobilize completely and thereby confiscate plaintiff’s property pending an indeterminate period during which defendant hunts for funds to condemn it. The purpose and necessary effect of this law is to take plaintiff’s property without provision for just compensation and without due process of law. (Matter of City of New York [Lincoln Sq. Slum Clearance Project], 15 A D 2d 153, 12 N Y 2d 1086; Matter of Colonial Liq. Distrs. v. O’Connell, 295 N. Y. 129; United States v. General Motors Corp., 323 U. S. 373; Forster v. Scott, 136 N. Y. 577; Litchfield v. Bond, 186 N. Y. 66; People v. Hawkins, 157 N. Y. 1; Chase v. City of Glen Cove, 41 Misc 2d 889; Matter of 59 Front St. Realty Co. v. Klaess, 6 Misc 2d 774; Rand v. City of New York, 3 Misc 2d 769; Roer Constr. Corp. v. City of New Rochelle, 207 Misc. 46; Matter of City of New York [Inwood Hill Park], 230 App. Div. 41, 256 N. Y. 556; 
      Miller v. City of Beaver Falls, 368 Pa. 189; State v. Griggs, 89 Ariz. 70; Henle v. Euclid, 97 Ohio App. 258; State v. Woditsch, 106 Ohio App. 541; State v. Stansberry, 5 Ohio App. 2d 191; Grand Trunk W. R. R. v. Detroit, 326 Mich. 387.) II. The statute violates sections 6 and 7 of article I of the Constitution of the State of New York and the Fourteenth Amendment of the Constitution of the United States by authorizing the appropriation of the Metropolitan’s property without making certain provision for payment of just compensation. (Sage v. City of Brooklyn, 89 N. Y. 189; Matter of Mayor of City of N. Y., 99 N Y 2d 569; Litchfield v. Bond, 186 N. Y. 66; Brewster v. Rogers Co., 169 N. Y. 73; Matter of City of New York [Fifth Ave. Coach Lines], 18 N Y 2d 212; Matter of City of Rochester [McLean], 102 App. Div. 181; People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48; Matter of Richardson, 247 N. Y. 401; Rosalsky v. State of New York, 254 N. Y. 117; Matter of Concordia Collegiate Inst. v. Miller, 301 N. Y. 189; Dun & Bradstreet v. City of New York, 276 N. Y. 198.) III. The withholding of the demolition permit authorized by the statute cannot be sustained as a valid exercise of the State’s police power. (Courtesy Sandwich Shop v. Port of N. Y. Auth., 12 N Y 2d 379; Utah v. Dickinson, 275 App. Div. 120, 300 N, Y. 610; Merced Dredging Co. v. Merced County, 67 F. Supp. 598; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; People v. Bunis, 7 N Y 2d 1; People ex rel. Wineburgh Adv. Co. v. Murplvy, 195 N. Y. 126; Vernon Park Realty Corp. v. City of Mount Vernon, 307 N. Y. 493; Scarsdale Supply Co. v. Village of Scarsdale, 8 N Y 2d 325; Incorporated Vil. of Brookville v. Paulgene Realty Corp., 24 Misc 2d 790,14 A D 2d 575,11 N Y 2d 672; King v. Incorporated Vil. of Ocean Beach, 207 Misc. 100, 286 App. Div. 850; Pennsylvania Coal Co. v. Mahon, 260 U. S, 393.) IV. Even if denominated a “ police law ”, the statute is invalid as denying Metropolitan the “ equal protections of the laws ”. (Atchison & Sante Fe Ry. v. Vosburg, 238 U. S. 56; Road Improvement Dist. No. 7 v. St. Louis-San Francisco R. R. Co., 28 F. 2d 825; Oklahoma City v. Dolese, 48 F. 2d 734; People ex rel, Farrington v, Mensching, 187 N. Y. 8; Cowan v. City of Buffalo, 247 App. Div. 591; Matter of Barry Equity Corp. [Marcia Mat Co.], 276 App. Div. 685; People v. Cohen, 272 N. Y. 319; Morey v. Doud, 354 U. S. 457; Rodgers v. Village of Tarry-
      
      town, 302 N. Y. 115.) V. There is no legal justification for the usurpation and appropriation of the “Met” name. (Metropolitan Opera Assn. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 279 App. Div. 632; Sullivan v. Sullivan Radio & T. V., 1 A D 2d 609; David B. Findlay, Inc. v. Findlay, 18 N Y 2d 12; St. Agnes Cemetery v. State of New York, 3 N Y 2d 37; Matter of City of New York [Fifth Ave. Coach Lines], 18 N Y 2d 212; State of New York v. Hudson & Manhattan R. R. Co., 229 N. Y. 141; Thompson v. Consolidated Gas Co., 300 U. S. 55; Wesson v. Galef, 286 F. 621; Philadelphia Stor. Battery Co. v. Mindlin, 163 Misc. 52.)
    
      J. Lee Rankin, Corporation Counsel (Frederic S. Nathan,
    
    
      Stanley Buchsbaum and James M. Brachman of counsel),
    for Charles Gr. Moerdler, as Commissioner of Buildings of the City of New York, and others, respondents in the above-entitled proceeding, and for defendants in the above-entitled action.
    
      Louis J. Lefkowits, Attorney-General (Daniel M. Cohen of counsel), in his statutoiy capacity under section 71 of the
    Executive Law and under CPLB 1012(b).
    I. Chapter 691 of the Laws of 1966 entitled ‘ ‘ An Act to Preserve the Metropolitan Opera House and to Incorporate the Old Met Opera House Corporation” is presumptively constitutional. (Wasmuth v. Allen, 14 N Y 2d 391; Lincoln Bldg. Assoc. v. Barr, 1 N Y 2d 413; Johnson v. City of New York, 274 N. Y. 411; South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177; United States v. Carolene Prods. Co., 304 U. S. 144; Paterson v. University of State of N. Y., 14 N Y 2d 432; Matter of Van Berkel v. Power, 16 N Y 2d 37.) II. The State Legislature has expressly stated that “ The Metropolitan Opera House at Broadway and 39th Street ” is “an historic landmark of both the City and State of New York ”, and that “ its preservation will serve the recreational and cultural needs of the citizens of this State ’ ’. This declaration of the public nature of the project to save the Old Met can, therefore, not be questioned effectively. (Roe v. Kansas, 278 U. S. 191; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333; Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, 4 A D 2d 801, 3 N Y 2d 1006.) III. On a reasonable construction and by reason .of the presumption of the validity of legislative acts, the provision in the statute (§ 8) authorizing the withholding of a demolition permit should be construed as •granting the Superintendent of Buildings a discretionary power. On its face, it does not prevent the Superintendent from granting a stay for a period less than 180 days or from requiring security in an amount exceeding $200,000. Presumptively, the amount specified by the Legislature should be deemed adequate. But if the amount were not to be deemed adequate by the Superintendent, or by a court reviewing his action after a hearing, additional security could be required. (People v. Finkelstein, 9 N Y 2d 342; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293, 368 U. S. 12; Farrington v. Pinckney, 1 N Y 2d 74; Gail Turner Nurses Agency v. State of New York, 17 Misc 2d 273.) IV. Prevention of the destruction of the Metropolitan Opera House, which the Legislature has found and declared to be an historic landmark, is a proper exercise of the police power. Accordingly, the provisions of section 8 of the statute, which merely authorize the Superintendent of Buildings to withhold the issuance of a demolition permit for a limited period of time, do not, by themselves, constitute a taking. (Kimball Laundry Co. v. United States, 338 U. S. 1; Jenad, Inc. v. Village of Scarsdale, 18 N Y 2d 78.) V. The delegation, pursuant to section 3 of chapter 691, to the legislatively created and legislatively named “ Old Met Opera House Corporation”, a nonprofit membership corporation, operated through the trustees appointed by the Mayor of the City of New York, of the very limited power to acquire the old site of the Metropolitan Opera House, by purchase or by condemnation, was not unconstitutional. (Weitzner v. Stichman, 271 App. Div. 255, 296 N. Y. 907; Matter of Incorporated Vil. of Garden City [Lorentsen], 15 A D 2d 513; Vanneck Realty Corp. v. City of New York, 259 App. Div. 461, 284 N. Y. 403.) VI. This court should, in any event, attribute appropriate weight to the clearly stated purpose of the Legislature to preserve the old Metropolitan Opera House as an historic landmark. It should modify the orders and judgment of Special Term to accord the Legislature an adequate opportunity to recast the statute even if Special Term is held properly to have declared chapter 691 unconstitutional, to accomplish appropriately the valid public purpose set forth in its first section. (Story v. New York El. R. R. Co., 90 N. Y. 122; 
      Reynolds v. Sims, 377 U. S. 533; WMCA, Inc. v. Lomenzo, 377 U. S. 633; Matter of Orans, 17 N Y 2d 601,17 N Y 2d 107; Rockaway Pacific v. Stotesbury, 255 F. 345; McCann v. Chasm Power Co., 211 N. Y. 301.)
   Keating, J.

In the early part of this year the Metropolitan Opera Association (the Association) vacated the building it had used for over 83 years and moved to a new building in the Lincoln Center for the Performing Arts.

The Association, prior to its departure, entered into a 50-year lease with the plaintiff, Keystone Associates Incorporated, under the terms of which Keystone was to demolish the building and erect thereon a 40-story office building. The new building was to become the property of the Association and Keystone would pay a yearly rental fee. This rental fee totalled $200,000 for the first four years and amounts graduated upward thereafter to comprise an average annual rental of $484,000. In addition, Keystone undertook to assume the burden of all taxes, insurance, maintenance and operating costs from the date on which possession was delivered. The lease also required that demolition commence within six months after possession was taken by the lessee, and that $1,000,000 be posted as security for the performance of the contract.

On May 10, 1966 possession of the property was delivered to Keystone after all usable stage and lighting equipment had been removed to the new opera house. On May 16, 1966, Keystone filed a written notice and application for a permit to demolish the building. On the same date the statute here in question was enacted.

The Legislature declared that it would serve the “recreational and cultural needs of the citizens of this state ’ ’ if the old building were preserved. To this end it created a private corporation, The Old Met Opera House Corporation (the Corporation), vested it with the power to condemn the property and appropriate it for use as an auditorium in which operas and other musical and cultural events could be held.

It provided in addition that the Superintendent of Buildings of the city could refuse a demolition permit for a period of 180 days upon the request of the trustees of the Corporation and upon the deposit by the trustees of $200,000. This sum was to stand, as security for payment of any damages the owner might suffer in the event no condemnation took place.

Though the statute was passed on the 16th of May it was not signed by the Governor for some six weeks. The $200,000 security was not posted until the 24th of August. In the interim the Buildings Commissioner delayed issuance of the permit so that the Corporation might have a reasonable time to organize and raise funds.

Shortly after the Governor approved the statute, this proceeding to compel issuance of the license was initiated by Keystone. In addition, the Association commenced an action to declare the statute unconstitutional.

Special Term declared the statute to be a taking of the Association’s and Keystone’s (the “ owners”) property during the 180-day period. It found in addition that the $200,000 would be insufficient to cover the damage certain to be suffered by them and that by limiting recovery to that amount the Legislature illegally invaded the judicial province.

The Appellate Division has unanimously affirmed that determination.

The Corporation on this appeal argues that the six-month delay'is a reasonable exercise of the police power; that the interference with the Association’s property is not a taking of property 1 ‘ in the constitutional sense ’ ’ and that, even if it be a taking, just compensation is provided.

It seems perfectly clear that the purpose of this statute is the appropriation of the Association’s and Keystone’s (“ owners ”) property to a public use. It declares that the preservation of the building “will serve the recreational and cultural needs of the citizens of this state ” and specifically empowers the Corporation to obtain the property through purchase or condemnation, “ such condemnation is hereby declared to be for a public purpose.”

The 180-day delay in demolition is authorized solely for the purpose of permitting the Corporation to raise funds to pay for the appropriation. In the meantime, we are told by the trustees of the Corporation, the owners are “ free ” to continue to operate this property as they have in the past—namely as an auditorium for the staging of “ recreational and cultural ” events. In other words, the owners may continue to use the building for the purpose desired by the Legislature or they can let the building stand idle and suffer the loss. Meanwhile the Corporation will collect the funds necessary to pay for a permanent appropriation.

The statute was clearly not intended to protect the public health, safety, and welfare, as those terms are understood. It may be true that the destruction of the old building will limit the number of auditoriums available for the staging of large scale cultural programs such as operas and ballets. To that extent the public may suffer. But the statute does not contain legislative findings that there is a shortage of such auditoriums and that the continued operation of this auditorium is necessary until others can be built, purchased or condemned. Indeed, the very scheme outlined by the statute runs counter to such a finding.

The Legislature is not willing to invest public funds in order to appropriate the building and it' is perfectly willing to see it demolished in six months if private funds are not forthcoming. No provision is made to guarantee the preservation of the building at the end of the six-month period.

Since this is clearly and explicitly a condemnation statute, the question is to what extent, pending exercise of the power of condemnation, the Legislature may interfere with the rights of property owners to build upon or improve their property.

In Forster v. Scott (136 N. Y. 577) we struck down a statute which provided that, after the Department of Parks filed a map of a proposed street, no compensation was to be made to the owner for any improvements put upon the land during the time between the filing of the map and the condemnation proceeding. Under the statute, it was not certain whether condemnation would in fact take place. “ The validity of a law ”, we wrote (p. 584), “is to be determined by its purpose and its reasonable and practical effect and operation, though enacted under the guise of some general power, which the legislature may lawfully exercise, but which may be and frequently is used in such a manner as to encroach, by design or otherwise, upon the positive restraints of the Constitution. What the legislature cannot do directly, it cannot do indirectly, as the Constitution guards as effectually against insidious approaches as an open and direct attack. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment, that materially affect its value, without legal process or compensation, it deprives Mm of his property within the meaning of the Constitution. All that is beneficial in property arises from its u,se and the fruits of that use, and whatever deprives a person of them deprives him of all that is desirable or valuable in the title and possession. It is not necessary, in order to render a statute obnoxious to the restraints of the Constitution, that, it must in terms or in effect authorize an actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.” (Emphasis added.) We went on (pp. 584-4585) to conclude that the plaintiff, in that case, was “ deprived of the right to build upon his lot by the statute in question, and as this circumstance obviously impaired its value and interfered with his power of disposition, it was to that extent void as to him ’ ’.

The deprivation here, not being incidental to a lawful exercise of the police power, is equally unreasonable and constitutes a taking of property for which just compensation must be paid if the statute is to be upheld (see, also, Miller v. City of Beaver Falls, 368 Pa. 189; State v. Griggs, 89 Ariz. 70 [1960]; Henle v. City of Euclid, 97 Ohio App. 258; Chase v. City of Glen Cove, 41 Misc 2d 889).

The Corporation argues that those cases, though involving similar restrictions, were indefinite in time. This is not entirely true. Griggs involved only a two-year period and the Beaver case a three-year period. In any event, where the restriction itself cannot be justified,, the period of time during which it operates is of no relevance. The longer in duration, the greater the damage is likely to be.

The Corporation contends that if the six-month delay in demolition in fact amounts to a taking, then the $200,000 available provides just compensation. This is not the case.,. The cost of rent and maintenance alone exceeds $113,000: This figure is conceded by the Corporation. In addition, when the property was turned over to Keystone and was no longer to be operated for tax exempt purposes, the property was taken off the tax exempt list and placed on the tax rolls. The taxes alone will exceed $125,000. These amounts do not even include the other damages which Keystone claims it has suffered as a result of the denial of the permit. While some of these claims are dismissed by the Corporation as “speculative,” “incapable of precise definition, ” “ anticipated and not actually incurred, ’ ’ etc., there is little question but that Keystone will suffer damages considerably in excess of the posted security.

In addition, the delay may result in Keystone’s being forced to abandon its lease. Thus, the Association is in danger of being deprived of substantial benefits under the terms of that lease.

Moreover, even if it were not certain that damages would exceed the posted security but merely possible that they would, this statute must fall. Compensation must be sure and certain and “ the property owner cannot be relegated to the doubtful responsibility or solvency of a private corporation or of an individual.” (Brewster v. Rogers Co., 169 N. Y. 73, 81.)

There is no guarantee or even likelihood that this assetless corporation will be able to pay damages in excess of the posted security. Whether the Legislature intended it or not, the practical effect of the statute is to set a limit on the amount of recovery. The law of this State is clear that the determination of just compensation is a judicial function and that the Legislature cannot set the maximum figure on the amount of compensation that will be paid. (See Matter of City of New York [Fifth Ave. Coach Lines], 18 N Y 2d 212, 218.)

In summary, this statute was not one enacted in furtherance of the police power. In constitutes an unreasonable interference with property rights for which the State must provide a sure and certain fund for recovery of the damage which will be suffered. The amount of such fund must be established through the judicial process, not by the Legislature.

The Corporation, in a vain effort to save the statute, has attempted, by a comparison of provisions, to test the constitutionality of the Landmarks Preservation Act of the City of New York. (Local Laws, 1965, No. 46 of City of New York.) We are concerned with the facts of this case and this case alone. It is not necessary, at this time, to enter into a discussion of the Landmarks Preservation Law or any other statute which appears to have been enacted in the exercise of the police power.

The statute here in question constituted an attempt by the Legislature to indulge those citizens — among whom is included the writer of this opinion—who desire the preservation of this grand old building for the staging of opera. However, that purpose may not be achieved by the appropriation of the property of other citizens. If dedication and use for a public purpose is desired, then just compensation must be paid. That is the command of our Constitution,

The order of the Appellate Division should be affirmed, without costs.

Chief Judge Desmond

(dissenting). The appeal is moot. Section 8 of the statute (L. 1966, ch. 691) clearly means that the City Superintendent of Buildings may withhold issuance of a demolition permit for no more than 180' days beyond the time one would ordinarily issue on due application. Such application to the Superintendent was made by Keystone Associates on May 16, 1966, which happens to be the same date on which the act was passed by the Legislature. Whether we use that date or the date of the Governor’s signing, June 24, 1966, 180 days have now expired. This statute conferred on a named corporation the privilege to acquire by condemnation a particular building and site. Since no such condemnation proceeding has been started and the 180-day period has passed the act is without any further possible effect and the situation is as if it had never been passed. The Superintendent now must issue the demolition permit and that is the end of the “ Old Met ” project.

As to constitutionality, I see no failure of this statute to meet requirements for validity. The Legislature made a finding and declaration that the Old Metropolitan Opera House is an historic landmark of the city and the State, that its preservation will serve the recreational and cultural needs of the citizens of the State, and that unless steps were taken to permit its acquisition by an appropriate corporation it would be demolished and destroyed. This declaration of the public nature of this project is beyond attack (Weitzner v. Stichman, 296 N. Y. 907; Roe v, Kansas, 278 U. S. 191, 193). As the Special Term Justice wrote in Ms opinion in tMs case: “ The only concern and the only legitimate concern of the court is whether there has been a talcing of private property without just compensation.” However, the only argument to support an affirmative answer to that question proceeds on the assumption, erroneous both in law and in fact, that the statute’s provision for a $200,000 bond is not sufficient to compensate the owners for the damages resulting from the 180-day delay. The law is, however, that the measure of damages for property appropriated for a temporary period of time is the loss of rental value during that time plus any damage to the fee caused by the temporary use (Mead v. State of New York, 24 A D 2d 1043; Spencer v. State of New York, 206 App. Div. 376). Security in the amount of $200,000 would seem to be ample to cover these damages, or so the Legislature could reasonably conclude. Furthermore, I read the statute in its use of the word “may” to mean that the Buildings Superintendent is empowered but not required to delay the demolition permit if the $200,000 bond should be posted. Reasonably interpreted, this means that he could investigate and, if he were convinced that the $200,000 was not enough, could deny the permit except on posting of larger security.

The argument that the statute is unconstitutional because it allows the corporation to use the name “ Old Met ” is without any substance. “ Old Met ” is the name by Avhich this building is popularly known.

The majority is giving no Aveight Avhatever to the ancient presumption of constitutionality of statutes and little credit to the proper legislative purpose of protecting a part of our cultural heritage and of the structures which enshrine those traditions. The making of statutes like this should be encouraged by the courts and not frowned upon because of the comparative novelty of the method used.

I Avould reverse.

Burke, J.

(dissenting). The appeal should be dismissed for mootness because the provisions of chapter 691 of the Laws of 1966 are no longer enforcible. During the 180-day period the trustees have shown no possibility of raising the funds necessary to acquire the old opera house. Under the circumstances the objective provided for by the statute can no longer be attained.

Judges Fuld, Van Voorhis and Scileppi concur with Judge Keating,- Chief Judge Desmond dissents in an opinion in which Judge Bergan concurs and in which Judge Burke concurs for dismissal in a separate memorandum.

Order affirmed. 
      
       It should be noted that the petitioner Keystone argues that it is impractical, if not impossible, for it to operate the building as a public auditorium as it now stands.
     