Red Apple Rest, Inc. v. McMorran

New York Court of Appeals

Red Apple Rest, Inc. v. McMorran

188 N.E.2d 137, 12 N.Y.2d 203, 237 N.Y.S.2d 707, 1963 N.Y. LEXIS 1426

New York Court of Appeals·Decided January 23, 1963·Published

Opinion

Per Curiam.

In this case, it is argued by appellants, by permission and upon an agreed statement of facts, that the State, acting through the Superintendent of Public Works, was not authorized to erect guardrails in front of a portion of appellants’ premises which abut upon a State highway, known as Route 17, in the vicinity of Southfields, Orange County, Few York. We think, to the contrary, that under the Highway Law, and under the police power, and to effectuate a reasonably safe channelling of traffic, the State had a right to erect upon the property appropriated the guardrails in question. The guardrails, as erected, did not create a nonaccess highway or bar access to the premises in question but left ample room for ingress and egress.

While the issue raised herein might have been reached by a proceeding under article 78 of the Civil Practice Act, the Appellate Division nevertheless had jurisdiction to entertain the issue raised in such a submission.

The judgment should be affirmed, without costs.

Chief Judge Desmond and Judges Dye, Fuld, Van Vooriiis, Burke, Foster and Scileppi concur.

Judgment affirmed.

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Per Curiam.

In this case, it is argued by appellants, by permission and upon an agreed statement of facts, that the State, acting through the Superintendent of Public Works, was not authorized to erect guardrails in front of a portion of appellants’ premises which abut upon a State highway, known as Route 17, in the vicinity of Southfields, Orange County, Few York. We think, to the contrary, that under the Highway Law, and under the police power, and to effectuate a reasonably safe channelling of traffic, the State had a right to erect upon the property appropriated the guardrails in question. The guardrails, as erected, did not create a nonaccess highway or bar access to the premises in question but left ample room for ingress and egress.

While the issue raised herein might have been reached by a proceeding under article 78 of the Civil Practice Act, the Appellate Division nevertheless had jurisdiction to entertain the issue raised in such a submission.

The judgment should be affirmed, without costs.

Chief Judge Desmond and Judges Dye, Fuld, Van Vooriiis, Burke, Foster and Scileppi concur.

Judgment affirmed.

Red Apple Rest, Inc. v. McMorran, 188 N.E.2d 137, 12 N.Y.2d 203, 237 N.Y.S.2d 707, 1963 N.Y. LEXIS 1426 (N.Y. 1963).

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188 N.E.2d 137 (Red Apple Rest, Inc. v. McMorran) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.