Whitbeck v. Hooker

73 Misc. 573, 133 N.Y.S. 534

• Court: New York Supreme Court
• Decided: October 15, 1911
• Status: Published

Opinion

Rudd, J.

The return of an order to show cause, granted upon the application of the plaintiffs, why an injunction pendente lite 'against the State Board of Highway Commissioners should not be granted, restraining said board from entering into a contract covering the construction of the State highway, which is part of route thirty, consisting of two and twenty-four-one-hundredths miles of highway in the town of Hurray, Orleans county.

The papers do not, in my opinion, justify the granting of the injunction pending the determination of this action. I am not satisfied that there is a serious question or doubt as to the legality of the act of the Highway Commission, so far as the laying out of the route is concerned.

The change of route from-what was originally contemjolated, or at least considered, is an indication that the commission was endeavoring to secure that which under all of the circumstances would be best for the traveling public.

In the route finally adopted, it seems that two railroad crossings at grade are avoided. That is desirable.

Aside, however, from the merits, I am of the opinion that I am bound by the determination of this court in Long v. Johnson, 10 Hisc. Rep. 308. It was there held that a taxpayer’s action, such as this one, -cannot be maintained to enjoin a State commission consisting of State officers appointed by the Governor to construct a prison plant.

If such a commission could not be restrained in a taxpayer’s action for the reason that that action only goes to test the acts of municipal bodies, including counties and towns, then it would be applicable here.

An order may be entered denying the motion for an injunction pendente lite, with ten dollars costs to abide the event.

Motion denied, with ten dollars costs to abide event.