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Rubin v. City of New York

42 Misc. 2d 598 Court Supreme Court, Appellate Term, First Department, Decision date 1964-03-27 English

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p. 598
Abraham D. Rubin et al., Respondents, v. City of New York, Appellant.
Supreme Court, Appellate Term, First Department,
March 27, 1964.
p. 599
Leo A. Larkin, Corporation Counsel (Seymour B. Quel and Benjamin Ojfner of counsel), for appellant. Arnstein & Schwarts (Louis L. Sclvwarts of counsel), for respondents.

By the resolution of the Board of Estimate of the City of New York of December 4, 1958, which established new street and sidewalk widths for 37th Street between Third and Eleventh Avenues, plaintiffs were thereby legally required to remove the encroachments in front of their property. The subsequent resolution of the Board of Estimate of January 26, 1961, in nowise amended or abrogated the resolution of December 4, 1958. The court below erred in holding that it had. The first resolution fixed the street widths; the second authorized the work necessary to achieve the new widths to the extent stated. Nothing- short of a resolution having equal dignity with the resolution of December 4, 1958, could have the effect of rescinding or abrogating that resolution. Plaintiffs’ suit was, therefore, untimely (General Municipal Law, § 50-e; Administrative Code of City of New York, § 394a-1.0).

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs.

Concur — Tilzer, J. P., Hofstadter and Hecht, JJ.

Judgment reversed, etc.

Statutes and regulations cited