Colson v. Wilson

205 Misc. 32, 129 N.Y.S.2d 622, 1953 N.Y. Misc. LEXIS 2731

• Court: New York Supreme Court
• Decided: November 19, 1953
• Status: Published

Opinion

Taylor, J.

The plaintiff, a resident of and the owner of real property in Central School District No. 1 of the towns of Glen, Mohawk, Charleston, Root and Palatine, Montgomery County, Carlisle and Esperance, Schoharie County, and Johnstown, Fulton County, sues the Commissioner of Education of the State of New York and the chairman and clerk of that school district seeking a declaratory judgment pursuant to section 473 of the Civil Practice Act to void and annul proceedings taken in conjunction with its organization and to enjoin permanently the levy of any tax or assessment on the real property located therein and the further organization and maintenance of the school district. The motion seeks injunctive relief of like character pendente lite. The defendants have cross-moved to dismiss the complaint for legal insufficiency. In my opinion the plaintiff is not entitled to maintain this action. ‘‘ Parallel and available remedies specially designed to reach this kind of a controversy” are provided by article 78 of the Civil Practice Act, if properly invoked. (Whalen v. Corsi, 98 N. Y. S. 2d 603, affd. 277 App. Div. 922; Matter of Chapin v. Board of Education, 291 N. Y. 241; Finley v. Spaulding, 274 App. Div. 522; Przyborowshi v. O’Connell, 272 App. Div. 1096, affd. 297 N. Y. 940; Education Law, § 2037.)

Defendant’s motion to dismiss the complaint is granted without prejudice to plaintiff’s right to pursue such other remedies as are provided by article 78 (supra) and without costs. The plaintiff’s motion for temporary injunctive relief must, hence, necessarily fall.

Submit order accordingly.