Edsall v. Village of Ilion

37 A.D.2d 684

Opinion

Judgment unanimously modified on the law and facts to reinstate the complaint with respect to claim for damages against defendants Village of Ilion and Board of Water Commissioners of the Village of Ilion, and otherwise affirmed, with costs to appellant against said defendants. Memorandum: Since plaintiff had a prior proceeding pending in the Third Department for the same relief, except for damages, which she seeks in this action, Special Term properly dismissed the complaint insofar as it sought a declaration that the permit to erect one or more dams in and divert water from Steele’s Creek was void and sought to enjoin defendants from proceeding thereunder. 'That portion of the complaint which demands damages against the defendants Village of Ilion and Board of Water Commissioners of the Village of Ilion, however, was not repetitive of the article 78 proceeding; it states a cause of action (Ferguson v. Village of Hamburg, 272 N. Y. 234, 239-241); and it should not have been dismissed. (Appeal from judgment of Herkimer Special Term dismissing complaint in action for injunction.) Present — Goldman, P. J., Marsh, Witmer, Moule and Cardamone, JJ.