Town of Oyster Bay v. Moses

247 A.D. 901

Opinion

Appeal by the town of Oyster Bay from two orders and the judgment entered on the second order dismissing the complaint. The action is brought to restrain the collection of tolls for passage on the Wantagh Causeway, which connects the mainland of Long Island with Jones Beach. Inasmuch as an answer was recited on the notice of motion, the court has considered the motion as one for judgment on the pleadings, and the order dated August 15, 1935, as a resettled order. The appeal from the order dated July 20, 1935, is dismissed, without costs. The order dated August 15, 1935, and the judgment entered thereon are unanimously affirmed, with ten dollars costs and disbursements. There is no dispute presented here as to any material question of fact; and there is no sufficient allegation as to a breach of covenant on the part of these defendants or the authority they constitute. The former statutes and authorities have well settled that it is within the power of the Legislature to close a road once free of passage and exact a toll for the purpose authorized. (See R. S. pt. 1, chap. 18, tit. 1, art. 2, § 29; Laws of 1846, chap. 212, § 9; Laws of 1847, chap. 210, § 26; Transportation Corporations Law, art. 10; Benedict v. Goit, 3 Barb. 469; Town of Fishkill v. Fishkill & Beekman Plank Road Co., 22 id. 634; People v. Fishkill & Beekman Plank Road Co., 27 id. 445; People ex rel. Cayadulta P. R. Co. v. Cummings, 166 N. Y. 110, 112; People ex rel. N. Y. C. & H. R. R. R. Co. v. State T. Comm., 205 App. Div. 462, 465; Panton Turnpike Co. v. Bishop, 11 Vt. 198; State v. Town of Hampton, 2 N. H. 22.) Present — Lazansky, P. J., Young, Davis, Johnston and Adel, JJ.