Lynbrook Gardens, Inc. v. Ullmann

265 A.D. 859, 37 N.Y.S.2d 671, 1942 N.Y. App. Div. LEXIS 6205

Opinion

No opinion. On appeal by the defendant from so much of an order as denies defendant’s motion for judgment on the pleadings as to the first cause of action and grants judgment of specific performance on that cause of action to plaintiff, and from so much of a judgment entered in accordance therewith, order and judgment, in so far as appealed from, unanimously affirmed, without costs. No opinion. Lazansky, P. J., Hagarty, Johnston and Taylor, JJ., concur. Carswell, J., concurs as to first cause of action, and likewise concurs as to invalidity of statute referred to in second cause of action, but as to latter deems that there is no aggrieved owner or suitor before the court entitled to have a ruling as to the constitutionality of that statute. No identified owner says his rights were cut off by action under the statute. There is no evidentiary or other showing that the rights of any unidentified owner were cut off. Hence the question is moot and these parties are seeking and getting an unauthorized advisory opinion. (Headley v. City of Rochester, 272 N. Y. 197, 204; People ex rel. Durham R. Corp. v. La Fetra, 230 N. Y. 429, 440; Arkansas Oil Co. v. Louisiana, 304 U. S. 197; Voeller v. Neilston Co., 311 U. S. 531, 537.) [179 Misc. Rep. 132.]