Wiesbader v. Marks

166 A.D. 725, 152 N.Y.S. 248, 1915 N.Y. App. Div. LEXIS 7335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1915
• Status: Published

Opinions

Scott, J.:

This is a taxpayer’s action to restrain the defendants, who are respectively president of the borough of Manhattan, commissioner of docks and ferries, and commissioner of bridges of the city of New York, from continuing or allowing to be continued certain open markets upon public places belonging to said city.

It seems that in the summer or early autumn of the year ■ 1914 the defendant Marks, with the cooperation of the other defendants, undertook to establish and did establish open markets on public lands belonging to the city of New York, at the Fort Lee ferry, at First avenue and Fifty-ninth street, and at Third avenue and One Hundred and Twenty-ninth street. The location of the Fort Lee Ferry market was on property acquired by the city of New York for dock purposes. The location of the other two markets was on land acquired by the city for bridge purposes.

Strictly speaking, the defendants in attempting to establish these markets acted beyond their authority, although no question is made by any one as to the motives by which they were actuated.

If it appeared that the defendants, having been advised of the illegality of their acts, persisted in .doing that which they have no lawful authority to do, a case might be made for the interference of the court. But it does not so appear.

On the contrary, the proper municipal authorities have taken the matter in hand and have acted within the provisions of the charter.

As to the markets at First avenue and Fifty-ninth street, and at Third avenue and One Hundred and Twenty-ninth street, the board of aldermen, who have the power so to do, have adopted ordinances establishing markets, subject to such rules and regulations as may be made by the comptroller. As to the market established on dock property at Fort Lee ferry, it is represented to us that the commissioner of docks and ferries, within whose jurisdiction the land lies, has ordered the market to be removed, having been advised by the corporation counsel that a market may not lawfully be maintained upon land acquired for dock and bulkhead purposes. It, therefore, appears that the constituted municipal authorities are taking, or have taken, the appropriate steps to correct any illegality committed by the defendants. Under these circumstances we see no occasion to exercise our discretion to grant an injunction pendente lite.

The order appealed from is, therefore affirmed, with ten dollars costs and disbursements.

Laughlin, Clarke and Hotchkiss, JJ., concurred; Dowling, J., dissented.