McLain Dock & Stone Co. v. Incorporated Village of Port Jefferson

Appellate Division of the Supreme Court of New York

McLain Dock & Stone Co. v. Incorporated Village of Port Jefferson

25 A.D.2d 755, 269 N.Y.S.2d 79, 1966 N.Y. App. Div. LEXIS 4569

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 1966

StatusPublished

This text of 25 A.D.2d 755 (McLain Dock & Stone Co. v. Incorporated Village of Port Jefferson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McLain Dock & Stone Co. v. Incorporated Village of Port Jefferson, 25 A.D.2d 755, 269 N.Y.S.2d 79, 1966 N.Y. App. Div. LEXIS 4569 (N.Y. Ct. App. 1966).

Pincite

Opinion

In an action (a) to declare an ordinance adopted by defendant invalid, illegal, unconstitutional, discriminatory and of no force and (b) to enjoin defendant from taking any steps to enforce said ordinance, defendant appeals from an order of the Supreme Court, Suffolk County, entered February 11, 1965, which denied defendant’s motion to dismiss the complaint on the ground inter alia that it fails to state a cause of action. Order modified by providing therein that the motion is granted as to plaintiffs Davis Industries, Inc., and Adeo, Inc., and denied as to the remaining two plaintiffs, and by striking out so much of the decretal paragraph as is to the contrary. As so modified, order affimed, with one bill of $10 costs and disbursements to said remaining two plaintiffs. The defendant’s time to answer is extended until 20 days after entry of the order hereon. In our opinion, the complaint fails to allege that plaintiffs Davis Industries, Inc., and Adco, Inc., come within the scope of the ordinance or that their property or rights are directly affected by it (Kipp v. Incorporated, Vil. of Ardsley, 13 A D 2d 1012). Defendant adopted an ordinance designated “ Ordinance 24 Licensing of Materials Transport.” Plaintiffs brought this action for a declaratory judgment, alleging that the ordinance is unconstitutional and adopted by the defendant village without statutory authority. Plaintiffs McLain Dock & Stone Co., Inc., and New Yok Trap Rock Corporation alleged that they are in the business of selling, buying and transporting by motor vehicles sand, stone and gravel from property they own or lease in defendant village, that the ordinance is invalid, illegal, unconstitutional and discriminatory against each of said plaintiffs and the businesses conducted by them and that each of them is aggrieved thereby. As to these plaintiffs the complaint states a justiciable issue and Special Term correctly held that as a matter of law the pleading should not be dismissed as to them (Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690). This is the limit of our decision. We do not consider or pass upon the reasoning and conclusion of Special Term as to the validity of the ordinance. Neither such reasoning nor such conclusion is pertinent to the issue. (Baldwin v. City of Buffalo, 7 A D 2d 386, 388.)

Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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In an action (a) to declare an ordinance adopted by defendant invalid, illegal, unconstitutional, discriminatory and of no force and (b) to enjoin defendant from taking any steps to enforce said ordinance, defendant appeals from an order of the Supreme Court, Suffolk County, entered February 11, 1965, which denied defendant’s motion to dismiss the complaint on the ground inter alia that it fails to state a cause of action. Order modified by providing therein that the motion is granted as to plaintiffs Davis Industries, Inc., and Adeo, Inc., and denied as to the remaining two plaintiffs, and by striking out so much of the decretal paragraph as is to the contrary. As so modified, order affimed, with one bill of $10 costs and disbursements to said remaining two plaintiffs. The defendant’s time to answer is extended until 20 days after entry of the order hereon. In our opinion, the complaint fails to allege that plaintiffs Davis Industries, Inc., and Adco, Inc., come within the scope of the ordinance or that their property or rights are directly affected by it (Kipp v. Incorporated, Vil. of Ardsley, 13 A D 2d 1012). Defendant adopted an ordinance designated “ Ordinance 24 Licensing of Materials Transport.” Plaintiffs brought this action for a declaratory judgment, alleging that the ordinance is unconstitutional and adopted by the defendant village without statutory authority. Plaintiffs McLain Dock & Stone Co., Inc., and New Yok Trap Rock Corporation alleged that they are in the business of selling, buying and transporting by motor vehicles sand, stone and gravel from property they own or lease in defendant village, that the ordinance is invalid, illegal, unconstitutional and discriminatory against each of said plaintiffs and the businesses conducted by them and that each of them is aggrieved thereby. As to these plaintiffs the complaint states a justiciable issue and Special Term correctly held that as a matter of law the pleading should not be dismissed as to them (Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690). This is the limit of our decision. We do not consider or pass upon the reasoning and conclusion of Special Term as to the validity of the ordinance. Neither such reasoning nor such conclusion is pertinent to the issue. (Baldwin v. City of Buffalo, 7 A D 2d 386, 388.)

Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 755, 269 N.Y.S.2d 79, 1966 N.Y. App. Div. LEXIS 4569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclain-dock-stone-co-v-incorporated-village-of-port-jefferson-nyappdiv-1966.