Air Terminal Properties v. City of New York

New York Supreme Court

Air Terminal Properties v. City of New York

172 Misc. 945, 16 N.Y.S.2d 629, 1939 N.Y. Misc. LEXIS 2586

CourtNew York Supreme Court

DecidedNovember 13, 1939

StatusPublished

Cited by1 cases

This text of 172 Misc. 945 (Air Terminal Properties v. City of New York) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Air Terminal Properties v. City of New York, 172 Misc. 945, 16 N.Y.S.2d 629, 1939 N.Y. Misc. LEXIS 2586 (N.Y. Super. Ct. 1939).

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Opinion

Froessel, J.

Motion for reargument, etc. The original denial of the motion for a temporary injunction was not upon the merits but was made virtually by consent upon the oral stipulation in open court by the corporation counsel that no poles would be erected in Seventy-seventh street, which was the immediate issue at the time. The superintendent of highways of Queens, in his answering affidavit on this motion, states that the corporation counsel has advised against erecting poles or stakes and he will abide by such advice. It appears, however, that the city authorities now propose to plant trees in this street. That branch of the motion which asks for reargument will be granted.

The question thus presented on this application is whether the city authorities should be restrained by way of a temporary injunction from planting trees in Seventy-seventh street, which was legally opened some time ago. Counsel for plaintiff were asked, upon the argument, to submit authorities for their contention, and they have been unable to do so. They simply claim that the city’s action is for a spiteful purpose, and urge that they have a right to cross this legally opened street with their airplanes unobstructed by trees or anything .else. The city denies any such intent, and, aside from its claim that it is acting entirely-within its legal rights, points out that numerous residents of the neighborhood, individually and as a group, support its action.

[946]*946I cannot conclude from this application that the planting of trees is in any way unlawful or justifies the granting on affidavits of a temporary injunction against a governmental agency or .its constituted officials. Most certainly there is no clear right to such drastic relief. On the contrary, it has been expressly held that the planting of shade trees is authorized and serves a useful public purpose. (Dougherty v. Village of Horseheads, 159 N. Y. 154, 159.)

Moreover, as plaintiff’s president frankly admits in his reply affidavit, the improvement of Seventy-seventh street would not result in the discontinuance of the airport. “ There would still be available to ‘ Holmes Airport ’ upwards of one hundred twenty-eight acres which could be used and would be used for such activities.”

Under the circumstances the application for a temporary injunction is denied and the stay in the order to show cause is vacated. Submit order.

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Froessel, J.

Motion for reargument, etc. The original denial of the motion for a temporary injunction was not upon the merits but was made virtually by consent upon the oral stipulation in open court by the corporation counsel that no poles would be erected in Seventy-seventh street, which was the immediate issue at the time. The superintendent of highways of Queens, in his answering affidavit on this motion, states that the corporation counsel has advised against erecting poles or stakes and he will abide by such advice. It appears, however, that the city authorities now propose to plant trees in this street. That branch of the motion which asks for reargument will be granted.

The question thus presented on this application is whether the city authorities should be restrained by way of a temporary injunction from planting trees in Seventy-seventh street, which was legally opened some time ago. Counsel for plaintiff were asked, upon the argument, to submit authorities for their contention, and they have been unable to do so. They simply claim that the city’s action is for a spiteful purpose, and urge that they have a right to cross this legally opened street with their airplanes unobstructed by trees or anything .else. The city denies any such intent, and, aside from its claim that it is acting entirely-within its legal rights, points out that numerous residents of the neighborhood, individually and as a group, support its action.

[946]*946I cannot conclude from this application that the planting of trees is in any way unlawful or justifies the granting on affidavits of a temporary injunction against a governmental agency or .its constituted officials. Most certainly there is no clear right to such drastic relief. On the contrary, it has been expressly held that the planting of shade trees is authorized and serves a useful public purpose. (Dougherty v. Village of Horseheads, 159 N. Y. 154, 159.)

Moreover, as plaintiff’s president frankly admits in his reply affidavit, the improvement of Seventy-seventh street would not result in the discontinuance of the airport. “ There would still be available to ‘ Holmes Airport ’ upwards of one hundred twenty-eight acres which could be used and would be used for such activities.”

Under the circumstances the application for a temporary injunction is denied and the stay in the order to show cause is vacated. Submit order.

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172 Misc. 945, 16 N.Y.S.2d 629, 1939 N.Y. Misc. LEXIS 2586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/air-terminal-properties-v-city-of-new-york-nysupct-1939.

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