Appeal from Special Term, Westchester County.
Action by Alfred E. Smith against Benjamin E. Smythe, as Street Commissioner. From an order of the Special Term granting a temporary injunction, defendant appeals. Reversed.
The following is the opinion of Tompkins, J., at Special Term.
The questions raised by the plaintiff are of sufficient importance to require the court to preserve the present status of the parties until the constitutional and other questions can be determined after a trial of the issues, and I think that the village should spend no money on the streets in question until those questions can be decided after a trial. The case can be tried in March and no harm can come to any one by that delay. In the meantime, the so-called streets can be cared for as they have been heretofore, or the owners of the houses in the park can arrange for their care.
Wm. Lloyd Kitchel, for appellant.
Alfred E. Smith, pro se.
Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, JENKS, and MILLER, JJ.
This is a taxpayer's action, brought to restrain the defendant, as street commissioner of the village of Bronxville, from expending the money of the village in caring for the streets of Lawrence Park, a residential subdivision of the village. The ground of complaint is that the streets of this park place, which are proposed to be cared for, are only 14 feet wide, and cannot, therefore, be accepted by dedication (section 1, c. 204, p. 85, Laws 1897, amending Laws 1890, p. 1192, c. 568, § 80), and that it is a legal waste of the money of the municipality to employ it for lighting and caring for these ways.
The main question here depends upon the constitutionality of chapter 93, p. 126, of the Laws of 1907, amending the village law (Laws [116 N.Y.S. 1072] 1897, p. 366, c. 414); it being conceded, in effect, if this act is valid, there is no ground for the order of injunction, either pending the trial or at any time. This being true, there would seem to be no good reason for postponing the consideration of the question and forcing the parties to the expense of a trial, unless the act is in fact void. Section 170 of the village law, as amended, provides that:
" Whenever prior to the incorporation of any village now or hereafter incorporated, any portion of the territory subsequently included within the limits of such village has been subdivided on a map or plan thereof into building lots and designated as a park or by any other name, such portion of said territory being hereinafter designated as a ‘ subdivision,’ and in such subdivision streets or roads are laid out not less than fourteen feet in width, which the board of trustees of said village is unable to accept by dedication because such streets are too narrow, or for any other reason, or where in any such case said board of trustees is willing to light and care for such streets and roads without the same being dedicated, and more than fifty dwelling houses shall have been constructed in said subdivision, the board of trustees of said village may provide for the lighting and care of such streets and roads, or any part thereof, in like manner as the other streets and roads of said village, provided that the amount expended annually for such purposes shall not exceed one-fourth of one per centum of the assessed value of the real property in said subdivision."
The constitutional objections suggested are that this act violates section 10 of article 8 and section 18 of article 3 of the state Constitution. Section 10 of article 8 provides that:
No " county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, *** nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes."
We apprehend that if the Legislature had, by an amendment to the village law, provided that the board of trustees of any village containing a park place might accept by dedication all streets, roads, or ways in such park place, no one would be found to suggest that this was giving the money or property, or loaning the money or credit of the village to any individual, association, or corporation, or that it was not a " county, city, town or village" purpose. Such a park place, used for residential purposes by those making up the municipal corporation, is property subject to taxation for village purposes. It is within the police power of the village; and, the streets and roads being open to public use, the mere fact that they may be in law private roads does not make their care and maintenance a private gratuity. These roadways, for all practical purposes, serve the uses of the village in the same sense that the general highways serve them, and the people situated along these private roadways, open to the general uses of the community, and who contribute their ratable share of taxes, have a natural right to have these ways lighted and cared for; and the mere fact that they are not received by the community under a dedication does not deprive the ...