Kibbee v. Lyons — 235 N.Y. 546

Majority

p. 546

William B. Kibbee et al., Doing Business under the Firm Name of A. S. Kibbee & Son, Appellants, v. John J. Lyons et al., as Members of the Canal Board of the State of New York, Respondents.

Headnote

Constitutional law — canals — statute providing for abandonment for canal purposes of portion of old Erie canal valid.

Kibbee v. Lyons, 202 App. Div. 562 , affirmed.

(Argued January 30, 1923;

decided February 27, 1923.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 22, 1922, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought to restrain the defendants, comprising the canal board of the state of New York, from proceeding with the abandonment for canal .purposes of a section

p. 547

of the state canal system located between locks 1 and 2 in the city of Albany. The action was based upon the grounds: First, that chapter 687 of the Laws of 1921, which purported to amend section 3 of chapter 147 of the Laws of 1903, not having been submitted to the people of the state of New York to be voted upon, was ineffectual to amend or repeal chapter 147 of the Laws of 1903, known as the “ Canal Referendum Act,” and is, therefore, unconstitutional. Second, that the act diverts money to a different purpose than that for which it was appropriated and is, therefore, unconstitutional.

Alphonso T. Clearwater, Charles W. Walton, Chester Wood and Charles J. Tobin for appellants.

Charles D. Newton, Attorney-General (C. T. Dawes and Edward J. Mone of counsel), for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.