Taintor v. Hattemer , 75 N.Y.S.2d 473 ( 1947 )

Action for judgment declaring the respective rights of parties relative to an alleged strip of land impressed with a trust for highway purposes, of instruments conveying and leasing lands under water, and of amendment of zoning resolution. Order granting motion to dismiss complaint for insufficiency on its face and making no determination with respect to other relief sought for the reason that such determination would be academic, modified on the law and the facts by striking out the second ordering paragraph and by providing in lieu thereof that the motion to dismiss, pursuant to rule 106 of the Rules of Civil Practice, is denied. As so modified, the order, insofar as appealed from, is unanimously affirmed, without costs, with leave to respondents to answer within twenty days from the entry of the order hereon. The complaint sufficiently states a cause of action with respect to impressment of a trust for highway purposes and to arbitrary change of the zoning ordinance. As to the so-called “ strip ” held in trust for highway purposes, the title of the town as a body politic in its proprietary capacity by virtue particularly of the confirmatory patent of 1686 cannot be considered on the motion addressed alone to the face of the complaint. So, too, the allegations with respect to change of zone of a particular parcel are sufficient and present issues of fact for trial, inclusive of the proposed use of the property for public purposes. The complaint, therefore, is sufficient in these aspects and is a proper subject for an action for declaratory judgment, even though the allegations with respect to unlawfulness of conveyance and lease of lands under water are conelusory and insufficient. Present — Hagarty, Acting P. J., Cars-well, Johnston, Adel and Sneed, JJ. [See post, p. 812.]