McCabe v. City of New York

257 A.D. 1010, 13 N.Y.S.2d 676, 1939 N.Y. App. Div. LEXIS 8906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1939
• Status: Published

Opinion

Appeal by defendant from a judgment on the pleadings in favor of plaintiffs, entered on defendant’s motion for judgment on the pleadings, which was denied. Judgment reversed on the law, with ten dollars costs and disbursements, defendant’s motion granted, with ten dollars costs, and judgment directed for defendant, dismissing the complaint on the merits. The action was brought to procure a declaratory judgment that certain resolutions passed by the city planning commission, which rezoned both the height district and the area district in which plaintiffs’ property is located, never became effective and are void. It is alleged in the complaint that the filing of certain protests with the board of estimate, after the resolutions were filed with that board, constituted a compliance with section 200 of the New York City Charter, and that the resolutions did not become effective because they were not approved by unanimous vote of the entire board of estimate. Defendant answered and moved for judgment on the pleadings, contending that section 200 of the Charter required that the protests be filed with the planning commission before the resolutions were adopted, and that, since the protests were not so presented and the board of estimate did not disapprove the resolutions, they became effective under section 200. In our opinion defendant’s interpretation of the section is correct, and the resolutions are valid and effective. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur. [170 Misc. 325.]