American Consumer Industries, Inc. v. City of New York ( 1967 )

Eager, J. (dissenting).

I dissent from the determination declaring the invalidity of the franchise or agreement with defendant Rub el Corporation for the exclusive right to deliver ice to the tenants of and railroads in the Hunts Point Market. The validity and lawfulness of the establishment and operation of said market by the respondent Commissioner of Markets of the City of New York is conceded. Therefore, the question here is not whether the said franchise or agreement itself was an act authorized by the police power. Rather, the question is whether the franchise or agreement is valid and authorized as an incident to the establishment and operation of the market. On this basis, the plaintiff has failed to sustain the burden of proving the alleged invalidity of the acts of the Commissioner. I would hold that the franchise or agreement and the acts and proceedings of the Commissioner with reference thereto were fully within his powers and that the same had such reasonable relationship to the establishment and operation of the market as to be sustainable. Declaratory judgment should be granted to the defendants.

Steuer, Capozzoli and McGivern, JJ., concur with Stevens, J. P.; Eager, J., dissents in opinion.

Judgment reversed on the law, with $50 costs and disbursements to appellant, and judgment granted in favor of the plaintiff declaring the exclusive franchise void, and the Clerk is directed to enter judgment accordingly.