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CHRISTIAN KLUEG v. JAMES E. ALLEN (03/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.40769 <http://www.versuslaw.com>; 297 N.Y.S.2d 887; 31 A.D.2d 984 March 10, 1969 CHRISTIAN KLUEG, APPELLANT,v.JAMES E. ALLEN, JR., AS COMMISSIONER OF EDUCATION OF THE STATE OF NEW YORK, ET AL., RESPONDENTS Appeal by the plaintiff from an order of Special Term which granted a motion of the defendants for summary judgment dismissing the complaint and from the judgment entered thereon. Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J. Author: Herlihy


Appeal by the plaintiff from an order of Special Term which granted a motion of the defendants for summary judgment dismissing the complaint and from the judgment entered thereon.

Herlihy, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Herlihy, J.

Author: Herlihy

The plaintiff was a taxpayer and qualified voter in Central School District No. 16. Pursuant to the provisions of article 37 of the Education Law, the Commissioner of Education caused District No. 16 and the Central School District No. 1 to be joined in a single central school district and such new district was approved by a majority of the qualified voters residing therein. The complaint alleged that article 37 of the Education Law was unconstitutional and further that School District No. 16 (known as "Abraham L. Kellogg Central School District") was the vested remainderman of a testamentary trust at the time of the proposed consolidation and that the joinder of the school districts would divest plaintiff and other residents and taxpayers of District No. 16 of a substantial property right. The allegations in the complaint as to the constitutionality of article 37 of the Education Law and due process were decided by this court in a somewhat similar set of facts in Matter of Board of Educ. of Union Free School Dist. No. 3 v. Allen (6 A.D.2d 316, affd. 6 N.Y.2d 871, app. dsmd. 361 U.S. 535) and is controlling as to the present complaint. Special Term was correct in deciding that the plaintiff individually and as a taxpayer did not acquire any property rights under the Kellogg will. The plaintiff never had a definable monetary or property interest in the remainder, and to the extent that he had an interest in the bequest being used for the public good, he still has such interest. We do not decide any other issues. Judgment and order affirmed, without costs.

19690310

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