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SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1969.NY.42884 <>; 304 N.Y.S.2d 28; 60 Misc. 2d 597 September 24, 1969 IN THE MATTER OF HERBERT A. POSNER ET AL., PETITIONERS,v.NELSON A. ROCKEFELLER, AS GOVERNOR OF THE STATE OF NEW YORK, ET AL., RESPONDENTS Peter A. A. Berle for petitioners. Louis J. Lefkowitz, Attorney-General (Jean M. Coon of counsel), for respondents. Francis J. Bloustein, J. Author: Bloustein

Francis J. Bloustein, J.

Author: Bloustein

 In this article 78 proceeding petitioners, as citizens, taxpayers and Assemblymen of this State, seek an order in the nature of mandamus, directing respondents (the Governor, the Director of the Budget, and the Comptroller of the State of New York) to cease expending any further moneys in accordance with certain provisions of the State Purposes Budget, the Local Assistance Budget, the Capital Construction Budget, and the Supplemental Budget, adopted at the last (1969) session of the New York State Legislature. The budgets under attack are contained in chapters 48, 49, 50 and 340 of the Laws of 1969 (appropriation bills submitted pursuant to section 3 of article VII of the Constitution). The petition alleges that the appropriation bills containing the challenged provisions do not comply with the requirements of article VII of the New York State Constitution with respect to the adoption of an appropriation bill. Petitioners assert that certain of the budgetary items contained in the appropriation bills should have been submitted on a "line" basis with specific proposed expenditures for the particular line "items".

Petitioners claim that there are three ways in which the constitutional requirements were violated: (1) that the budgets, in a number of instances, consist of "lump sum" appropriations for generalized purposes; (2) that the "line by line" itemization contained in other challenged provisions of the appropriation bills totals in amount a sum in excess of the expenditure limit provided for all the items involved, thus requiring, for compliance with said limit, deletion or modification of some of the items during the budget year by the administrative agencies or heads of such departments, and rendering the legislative enactment or approval of the line items within such budget meaningless; and (3) that in some instances power is granted the Director of the Budget of the State to transfer funds between programs and departments, or, in one case that was cited, personnel between departments, thus, again, rendering meaningless the legislative approval of a "line by line" budget.

In sum, petitioners urge that by these means and devices their function and obligation as State legislators with respect to budgetary matters, as outlined in the State Constitution (art. VII), have been vitiated; their duty to pass upon the budget in a manner which allows for review and approval, elimination or reduction of specific "line items" of the appropriation bills rendered nugatory, and their rights as citizens and taxpayers to have a "line by line" budget submitted as required by constitutional mandate adversely affected.

In moving to dismiss the petition, in addition to supporting the substantive correctness of the actions under attack, respondents also assert the impropriety and untimeliness of the remedies invoked; petitioners' lack of standing to bring the proceeding, either as legislators, taxpayers or citizens of the State; and the failure to join allegedly necessary parties (those being all who receive or expend State funds).

The claim that petitioners are proceeding improperly is not well founded. A petition such as this, under article 78 of the CPLR is an accepted remedy for challenging the validity of action taken by a public body or officer.

The claim of lack of standing is likewise not well taken. It is clear that the New York State Constitution vests petitioners and their fellow legislators with a special function in the budget-making process (N. Y. Const., art. VII, § 4) and that the acts complained of deprived petitioners and other legislators of their right and duty to pass upon specific items of the budget. An adequate allegation of a deprivation of a right peculiar to petitioners and those similarly situated has thus been shown (see City of Buffalo v. State Bd. of Equalization and Assessment, 26 A.D.2d 213, 214).

Moreover, there is a pronounced trend toward permitting wide latitude to citizens and taxpayers to institute actions against governmental bodies and officers. Respondents urge the authority of the 4 to 3 decision of the Court of Appeals in St. Clair v. Yonkers Raceway (13 N.Y.2d 72). The majority opinion of Judge Burke in that case made it clear, however, that he was placing strong reliance on the then prevailing Federal rule as reflected in the decisions of the United States Supreme Court (p. 76). However, since the decision in the St. Clair case, written in 1963, the prior Federal rule was changed by the Supreme Court in Flast v. Cohen (392 U.S. 83 [1968]), where the court held that appellants there, as taxpayers, had a personal stake in the outcome of the proceeding and under the circumstances had standing to institute an action questioning the constitutionality of the expenditure of Federal funds. In this connection, see the well-written and documented article "Standing to Sue in Public Actions" (78 Yale L. J., 816 [April, 1969]).

Moreover, as legislators, petitioners have a special status (arising out of their representative standing and the obligations as well as powers vested in them) which certainly gives them standing to maintain this proceeding.

Nor was this petition untimely brought. The budget bills attacked were enacted on March 28, 29 and May 2, 1969. Disbursements of funds pursuant to these budgets could not be made until after their enactment. Expenditures are being made continuously under the authority of such bills. Thus, even if it were true, as respondents argue, that the time period prescribed by CPLR 217 commenced running from the last date for submission of the bills by the respondent Governor (which would require holding their enactment merely a formality), the continuing nature of the wrong would permit maintenance of this proceeding.

Nor is there any merit to respondents' argument of failure to join necessary parties (those being all department heads whose budgets are affected). If the challenged appropriations are illegal, then respondents, who would otherwise have the responsibility for the expenditure of the sums appropriated, should be restrained from making or permitting such expenditures.

The mere fact that petitioners might have sought relief by way of declaratory judgment, rather than in an article 78 proceeding, is not a basis for dismissal of the proceeding. Even if an article 78 proceeding were not a proper remedy, the court has obtained jurisdiction of the parties and it is specifically empowered to make whatever order is required for the proper disposition of this proceeding (CPLR 103, subd. [c]).

On the merits, article VII of the New York Constitution provides, insofar as here pertinent, "the governor shall submit to the legislature a budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year" (§ 2), for the submission of a budget by the Governor to the Legislature, which shall be embodied in "a bill or bills containing all the proposed appropriations" (§ 3). Insofar as the Legislature is concerned, its powers with respect to the budget are clearly set forth, primarily, in section 4 of that article, which provides:

"The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original ...

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