author: Dye, J.

text:
    Black River Regulating District et al., Respondents, v. Adirondack League Club, Appellant.
    Argued February 26, 1954;
    decided July 14, 1954.

      Charles H. Tuttle, Warnich J. Kernan, John R. Brook and Sanford D. Stockton, Jr., for appellant.
    I. An affirmative answer should be given to the first certified question. (Matter of Flushing Hosp. & Dispensary, 288 N. Y. 735; Brady v. Blackett-Sample-Hummert, 285 N. Y. 540.) II. An affirmative answer should also be given to, the second certified question. (Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Quaker Oats Co. v. City of New York, 295 N. Y. 527; Gilpin v. Mutual Life Ins. Co. of N. Y., 299 N. Y. 253; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419.) III. Rule 113 was applicable and presented the validity of the Stokes Act as a question of law. (Chance v. Guaranty Trust Co. of N. Y., 173 Misc. 754, 257 App. Div. 1006, 282 N. Y. 656.) IV. The constitutionality of the Stokes Act is upheld as a matter of law by section 1 of article III of the State Constitution. (Matter of Fink v. Cole, 302 N. Y. 216; Association for Protection of Adirondacks v. MacDonald, 253 N. Y. 234.) V. The constitutionality of the Stokes Act is also upheld as a matter of law by section 3 of article V of the State Constitution. VI. The constitutionality of the Stokes Act is also upheld as a matter of law by section 1 of article X of the State Constitution. (Beloff v. Consolidated Edison Co., 300 N. Y. 11; People ex rel. Clauson v. Newburgh & Shawangunk Plank Road Co., 86 N. Y. 1; Matter of Wallace, 71 App. Div. 284.) VII. The constitutionality of the Stokes Act is also upheld as a matter of law by section 3 of article XIV of the State Constitution. (People v. Adirondack Ry. Co., 160 N. Y. 225, 176 U. S. 335; People v. System Properties, 281 App. Div. 433.) VIII. The constitutionality of the Stokes Act is also upheld as a matter of law by section 2 of article XIV of the State Constitution. The constitutionality of the Stokes Act is also upheld as a matter of law by section 1 of article XIV of the State Constitution. IX. In no sense was the Stokes Act a local law; and, even if it were, it would violate no constitutional restriction. (People ex rel. Clauson v. Newburgh & Shawangunk Plank Road Co., 86 N. Y. 1; Ferguson v. Ross, 126 N. Y. 459; Robertson v. Zimmermann, 268 N. Y. 52; Adler v. Deegan, 251 N. Y. 467; Buchanan v. Town of Salina, 270 App. Div. 207; Matter of Wallace, 71 App. Div. 284.) X. The mere fact that, before its final determination, the board incurred “ preliminary ” expenses, defrayed by the issue of conditional "certificates of indebtedness, for preliminary surveys and paper work, in no way empowers the board to use the courts to force specific performance of its subsequent formulation and determination upon the State and the defendant in the teeth of the Stokes Act. (People v. Adirondack Ry. Co., 160 N. Y. 225; Keefe v. Clark, 322 U. S. 393; Ramapo Water Co. v. New York, 236 U. S. 579; Underground R. R. v. City of New York, 193 U. S. 416; Ramapo Mountains Water, Power & Service Co. v. Commissioners of Palisades Interstate Park, 177 App. Div. 700; Trenton v. New Jersey, 262 U. S. 182; Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378; Darlington v. Mayor of City of N. Y., 31 N. Y. 164; Robertson v. Zimmermann, 268 N. Y. 52; Twentieth Century Associates v. Waldman, 294 N. Y. 571; Matter of Matson, 293 N. Y. 476; Shepherd v. Mount Vernon Trust Co., 269 N. Y. 234; Matter of People (Tit. & Mtge. Guar. Co.), 264 N. Y. 69; Norman
      v. Baltimore & O. R. Co., 294 U. S. 240; Hudson Water Co. v. McCarter, 209 U. S. 349; Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Union Dry Goods Co. v. Georgia P. S. Corp., 248 U. S. 372; Home Bldg. & L. Assn. v. Blaisdell, 290 U. S. 398.) XI. The Appellate Division’s assumption that, merely because the board has outstanding some $200,000 in renewals of certificates, the courts must force, as against the Legislature and the Governor, the board’s claim to proceed with this enormous construction and invasion of the Adirondack State Park at a 1947 estimated cost of $6,000,000, is wholly untenable. (Lord v. Thomas, 64 N. Y. 107; People ex rel. Ryan v. Aldridge, 83 Hun 279; Caldwell v. Donaghey, 108 Ark. 60; Hays v. Port of Seattle, 251 U. S. 233; Brown v. Colorado, 106 U. S. 95; Burns & McDonnell Engineering Co. v. Iowa City, 225 Iowa 1241; Gray v. City of Joliet, 287 Ill. 280; Markman v. Calumet City, 297 Ill. App. 531; Vail v. City of Paris, 344 Ill. App. 590.) XII. Even if repayment of the outstanding certificates were now to be considered, the board has remedies, although not by the present action. (Ausable Chasm Co. v. State of New York, 266 N. Y. 326; Williamsburgh Sav. Bank v. State of New York, 243 N. Y. 231; Farrington v. State of New York, 248 N. Y. 112 ; Guthrie Nat. Bank v. Guthrie, 173 U. S. 528.) XIII. The individual plaintiffs have no legal capacity to test the constitutionality of the Stokes Act. (Bull v. Stichman, 273 App. Div. 311, 298 N. Y. 516; County of Albany v. Hooker, 204 N. Y. 1; Trenton v. New Jersey, 262 U. S. 182; Newark v. New Jersey, 262 U. S. 192; Sweeney v. State of New York, 251 N. Y. 417.) XIV. An affirmative answer should also be given to the fifth certified question: “ Was the Supreme Court, as a matter of law, without jurisdiction over the subject matter of this action in that the State of New York is not, has not been, and has not consented to become, a party to the action? ” (Manhattan Stor. & Warehouse Co. v. Movers & Warehousemen’s Assn., 289 N. Y. 82; Wood v. City of Salamanca, 289 N. Y. 279; Somberg v. Somberg, 263 N. Y. 1; Bach v. Grabfelder, 233 App. Div. 773; Public Serv. Comm. v. Wycoff Co., 344 U. S. 237; James v. Alderton Dock Yards, 256 N. Y. 298.) XV. An affirmative answer should also be given to the sixth certified question: “ Is the State of New York a necessary and indispensable party to this action, as a matter of law? ” (Metropolitan Trust Co. v.
      Tax Comrs., 220 N. Y. 344; Niagara Falls Power Co. v. White, 292 N. Y. 472; Sanders v. Saxton, 182 N. Y. 477.) XVI. An affirmative answer should also be given to the seventh certified question: “ Is the plaintiff District and Board without power, as a matter of law, to sue in this action by a private attorney for a declaratory judgment that Chapter 803 of the Laws of 1950 is unconstitutional? ” XVII. The law of this.case is now dominated by the constitutional amendment which took effect January 1, 1954. The purpose and consequence of the amendment were to revoke any authority to use the lands of the State, constituting the Forest Preserve, for the construction and maintenance of further reservoirs “ to regulate the flow of streams ”. XVIII. This court is required to direct judgment in accordance with the law of this case as established by the constitutional amendment. (Bradford v. County of Suffolk, 283 N. Y. 503; Matter of Kahn [Nat. City Bank], 284 N. Y. 515; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Duplex Co. v. Deering, 254 U. S. 443; American Steel Foundries v. Tri-City, 257 U. S. 184; Texas Co. v. Brown, 258 U. S. 466.)

      Nathaniel L. Goldstein, Attorney-General (Edward L. Ryan and Wendell P. Brown of counsel), appearing under section 71 of the Executive Law.
    I. The Stokes Act does not violate either the Federal or State Constitutions. (Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, 235 N. Y. 600; Board of Hudson Riv. Regulating Dist. v. Fonda, Johnstown Gloversville R. R. Co., 249 N. Y. 445; Matter of Adirondack League Club v. Black Riv. Regulating Dist., 275 App. Div. 618, 301 N. Y. 219; Hunter v. City of Pittsburgh, 207 U. S. 161; Trenton v. New Jersey, 262 U. S. 182; Faitoute Co. v. Asbury Park, 316 U. S. 502; Williams v. Mayor, 289 U. S. 36; Pawhuska v. Pawhuska Oil Co., 250 U. S. 394; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Hssex Public Road Bd. v. Skinkle, 140 U. S. 334; Brooklyn & Richmond Ferry Co. v. United States, 167 F. 2d 330; People v. Morris, 13 Wend. 325; Crenshaw v. United States, 134 U. S. 99; Williamson v. New Jersey, 130 U. S. 189.) II. Plaintiffs have no standing in law to question the constitutionality of the Stokes Act. (Sweeney v. State of New York, 251 N. Y. 417; Williams v. Mayor, 289 U. S. 36; Newark v. New Jersey, 262 U. S. 192; County of Albany v. Hooker, 204 N. Y. 1;
      Matter of Bd. of Educ. of Bethlehem Union Free School Dist. No. 1 v. Wilson, 303 N. Y. 107; People ex rel. Durham Realty Corp, v. La Fetra, 230 N. Y. 429; Norman v. Baltimore & Ohio R. Co., 294 U. S. 240.) III. Plaintiffs, as individuals, have no legal capacity to test the constitutionality of the act. (Bull v. Stichman, 273 App. Div. 311, 298 N. Y. 516.)

      Milo R. Kniffen for Adirondack Moose River Committee, Inc., and others, amici curiae, in support of appellant’s position.
    I. An affirmative answer should be given to the seven certified questions submitted herein by reason of the fact that the decision of the Court of Appeals (301 N. Y. 219), is decisive of this litigation. (Wilmerding v. O’Dwyer, 297 N. Y. 664; Matter of Flushing Hosp. & Dispensary, 288 N. Y. 735.) II. An affirmative answer should be given by this court to the seven certified questions submitted herein by reason of the fact that the Stokes Act (L. 1950, ch. 803) is constitutional and effectively prohibits the construction of Panther Dam and is decisive of this litigation. (Darweger v. Staats, 267 N. Y. 290; Stanton v. Board of Supervisors of Co. of Essex, 191 N. Y. 428; People ex rel. Clauson v. Newburgh & Shawangunk Plank Road Co., 86 N. Y. 1; Ferguson v. Ross, 126 N. Y. 459; Adler v. Deegan, 251 N. Y. 467; Association for Protection of Adirondacks v. MacDonald, 253 N. Y. 234.) III. No plaintiff herein has any standnig or authority to question or attack the act of the Legislature. (Robertson v. Zimmermann, 268 N. Y. 52; Hunter v. Pittsburgh, 207 U. S. 161; Darlington v. Mayor of City of N. Y., 31 N. Y. 164; Trenton v. New Jersey, 262 U. S. 182; Risty v. Chicago, R. I. & P. Ry. Co., 270 U. S. 378; Pawhuska v. Pawhuska Oil Co., 250 U. S. 394; Lynch v. United States, 292 U. S. 571; County of Albany v. Hooker, 204 N. Y. 1.) IV. It is fallacious for respondent to seek to limit the questions certified to this court by the Appellate Division. V. This court should direct the making of a final order in accordance with the constitutional amendment which became effective January 1, 1954. (Bradford v. County of Suffolk, 283 N. Y. 503; Matter of Kahn (Nat. City Bank), 284 N. Y. 515; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419.)

      Daniel Scanlon and Russell Wright for respondents.
    I. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation as inoperative as though it had never been passed. (Norton v. Shelby Co., 118 U. S. 425; Poindexter v. Greenhow, 114 U. S. 270; Van Antwerp v. State of New York, 218 N. Y. 422; People ex rel. Farrington v. Mensching, 187 N. Y. 8; Chenango Bridge Co. v. Paige, 83 N. Y. 178; Atkins v. Hertz Drivurself Stations, 261 N. Y. 352; Borden’s Co. v. Baldwin, 293 U. S. 194.) II. The constitutional questions here involved should not be decided on a motion addressed to the pleadings. (Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Board of Black Riv. Regulating Dist. v. Ogsbury, 235 N. Y. 600; Weiskopf v. City of Saratoga Springs, 269 N. Y. 634; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; City Ry. Co. v. Citizens’ R. R. Co., 166 U. S. 557.) III. The complaint and supplement sufficiently allege facts showing the invalidity of the Stokes Act under the Federal and State Constitutions. (Fletcher v. Peck, 6 Cranch [U. S.] 87; Georgia R. R. Co. v. Redwine, 342 U. S. 299; Louisiana v. Pilsbury, 105 U. S. 278; Russell v. Sebastian, 233 U. S. 195; Grand Trunk Western Ry. v. South Bend, 227 U. S. 544; Houston & Texas Central Ry. v. Texas, 170 U. S. 243.) IV. Respondents’ regulating board and regulating district are more than a mere a'gent of the State. (Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, 235 N. Y. 600; Matter of Adirondack League Club v. Board of Black Riv. Regulating Dist., 275 App. Div. 618; Board of Hudson Riv. Regulating Dist. v. Fonda, Johnstown & Gloversville R. R. Co., 249 N. Y. 445.) V. Black River Board and District have an interest in the continuing life and health of the whole project, a system of reservoirs, of which Panther Mountain Reservoir is “ an integral part.” So, too, have the holders of the certificates of indebtedness of the district. (New York Trap Rock Corp. v. Town of Clarkstown, 299 N. Y. 77.) VI. The amendment to the State Constitution, effective January 1,1954, cannot be applied to bar completion of Panther Mountain Reservoir long previously authorized and under way. It is subject to the same constitutional infirmities as the Stokes Act. (Russell v. Sebastian, 233 U. S. 195; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Lincoln Union v. Northwestern Co., 335 U. S. 525; County of Callaway v. Foster, 93 U. S. 567; Louisiana v. Pilsbury, 105 U. S. 278; Town of Cherry Creek v. Becker, 123 N. Y. 161.) VII. The constitutional amendment effective January 1, 1954? does not render erroneous the decision of the Appellate Division below. (Matter of Reynolds, 202 N. Y. 430; People v. Miller, 304 N. Y. 105.) VIII. Section 2 of article XIV of the Constitution limited the Legislature to make provisions ‘ ‘ by general laws ” for use of State-owned Forest Preserve lands within the 3% limitation. The Stokes Act is not a general law within this limitation. (Matter of Kuhn v. Curran, 294 N. Y. 207; Stapelton v. Pinckney, 293 N. Y. 330; People ex rel. Burby v. Howland, 155 N. Y. 270; People ex rel. Bolton v. Albertson, 55 N. Y. 50; People ex rel. Reynolds v. Common Council of City of Buffalo, 140 N. Y. 300; People v. O’Brien, 111 N. Y. 1.) IX. Appellant cannot justify this legislative vivisection under the theory of reserved power to amend corporate charters. No more can appellant justify the Stokes Act as the withdrawal of powers previously given to a municipal corporation. (Breslav v. New York & Queens Elec. Light & Power Co., 249 App. Div. 181, 273 N. Y. 593; Matter of Mount Sinai Hosp., 250 N. Y. 103; Lord v. Equitable Life Assur. Soc., 194 N. Y. 212; Owensboro v. Cumberland Tel. Co., 230 U. S. 58; Coombes v. Getz, 285 U. S. 434; Mobile v. Watson, 116 U. S. 289; Town of Cherry Creek v. Becker, 123 N. Y. 161.)
   Dye, J.

In this appeal we deal with the enforcibility of a proposed plan to construct Panther Mountain reservoir and dam on the south branch of the Moose River, a tributary of the Black River in Herkimer County, for the purpose of regulating the flow of the Black River and its tributaries.

The controversy turns on the applicability of the Stokes Act, so-called, which prohibits the construction of reservoirs for the regulation of the flow of streams or for any other purpose except for municipal water supply * * * in Hamilton or Herkimer counties on the south branch of the Moose river by any river regulating board.” (L. 1950, ch. 803, eff. April 20, 1950, amdg. Conservation Law, § 445, as added by L. 1915, oh. 662.)

Prior to such amendment the State Constitution as it then read, declared “ lands of the state * * * constituting the forest preserve * * * shall be forever kept as wild forest lands ” subject however to the exception that the Legislature could provide “ for the use of not exceeding three per centum of such lands for the construction and maintenance of reservoirs * * * to regulate the flow of streams ” (N. Y. Const., art. XIV, §§ 1, 2).

At the general election held in November, 1953, this exception was cancelled and withdrawn by the adoption of the Ostrander Amendment, so-called, which, according to the official phrasing prepared by the Secretary of State for the voting machines and ballots was intended “ to prohibit the use of portions of the forest preserve for the construction of reservoirs to regulate the flow of streams ”. In adopting that amendment the People of the State have rendered the lands of the State Forest Preserve inviolate for use in regulating the flow of streams.

When the parties to this litigation were previously before us, the board asked us to review the correctness of the decision in the Appellate Division (to the effect that the reservoirs and dam should be built according to plan “ to the same extent that it would have done if the Stokes Act had not been passed ”.) We ruled that “ Since the reservoir planned by the Board * * * was concededly not ‘ for municipal water supply ’ and since no construction had actually been commenced, the action on the part of the Legislature [that is, enactment of the Stokes Act] effectively and completely disposed of the Board’s plan.” We reversed the order of the Appellate Division and remitted the matter to Special Term “ with directions to dismiss the petitions solely upon the ground that the issues are moot ”. We thus did not reach the merits (Wilmerding v. O’Dwyer, 297 N. Y. 664) nor did we deem it a situation requiring special treatment (Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402; Matter of Glenram Wine & Liq. Corp. v. O’Connell, 295 N. Y. 336). At the same time we declined to pass upon the constitutionality of the Stokes Act as such question was not then before us (Matter of Adirondack League Club v. Board of Black Riv. Regulating Dist., 301 N. Y. 219, revg. 275 App. Div. 618). Shortly thereafter the Black Biver Begulating District and the individual plaintiffs for themselves and as members of the district board instituted this action for a judgment declaring it entitled to maintain condemnation proceedings as against the defendant, Adirondack League Club and that the Stokes Act in its application to the Panther Mountain Beservoir project is constitutionally invalid.

The defendant, Adirondack League Club, by its answer, admitted all the facts of record and generally denied all other allegations, pleading in and for an affirmative defense that the construction of the Panther Mountain reservoir was barred by the Stokes Act, the plaintiff’s lack of status to challenge its validity and our decision in the prior case. The defendant then challenged the sufficiency of the complaint by motion for judgment on the pleadings (Bules Civ. Prac., rule 112) or, in the alternative, for an order dismissing the complaint and for summary judgment (Buies Civ. Prac., rule 113). The Special Term granted such motion, dismissed the complaint and gave summary judgment in favor of the defendant.

The Appellate Division, although agreeing that the final order of the district board had been rendered inoperative by the decision of this court and had been annulled by implication of law, but since we had not passed on the constitutionality of the Stokes Act, unanimously reversed on the law and the facts the Special Term order dismissing the complaint, holding as a matter of law that if the constitutional invalidity of the act was established, ‘1 the issues which were rendered moot by the passage of the Stokes Act would be no longer moot ”. The Appellate Division also indicated that the plaintiffs had an independent interest (by reason of their liability on the outstanding certificates of indebtedness), separate and apart from their status as an agency of the State, to test the constitutionality of the Stokes Act (Black River Regulating Dist. v. Adirondack League Club, 282 App. Div. 161).

The Appellate Division granted leave to appeal to this court on seven certified questions of law, viz.:

1. Did this Court err as a matter of law in reversing the order and judgment of the Special Term?

2. Under Buie 112 of the Buies of Civil Practice was the defendant entitled, as a matter of law, to judgment on the pleadings dismissing the complaint?

3. In the alternative, and under Buie 113 of the Buies of Civil Practice, was the defendant entitled, as a matter of law, to judgment dismissing the complaint?

4. Were the plaintiffs, as a matter of law, without power or standing to question the constitutional power of the State Legislature to adopt the so-called Stokes Act, being Chapter 803 of the laws of 1950?

5. Was the Supreme Court, as a matter of law, without jurisdiction over the subject matter of this action in that the State of New York is not, has not been, and has not consented to become, a party to the action?

6. Is the State of New York a necessary and indispensable party to this action as a matter of law?

7. Is the plaintiff District and Board without power, as a matter of law, to sue in this action by a private attorney for a declaratory judgment that Chapter 803 of the Laws of 1950 is unconstitutional ?

At the outset we wish to make it clear that we intend to deal with the issues presented in light of existing law. While the Stokes Act and the Ostrander Amendment were subsequent to the approval of the proposed reservoir project, they nonetheless enunciated a public policy concerning the use of the lands in the State Forest Preserve in order to make sure that such lands shall be forever kept as wild forest lands ”. In such a setting we decide the issue and answer the questions certified in accordance with the law as it exists when our decision is made (Gallewski v. Hentz & Co., 301 N. Y. 164, 172; Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271), a policy in harmony with Federal authority (United States v. Schooner Peggy, 1 Cranch [U. S.] 103) and which is consonant with our unwillingness to perpetuate a judgment contrary to existing law (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Matter of Kahn [Nat. City Bank], 284 N. Y. 515; Bradford v. County of Suffolk, 283 N. Y. 503; Texas Co. v. Brown, 258 U. S. 466; Duplex Co. v. Deering, 254 U. S. 443).

The constitutional withdrawal of the board’s legislative authority to use lands of the State Forest Preserve “ to regulate the flow of streams ” is not in any way limited to a prospective effect, nor may its effectiveness be suspended or postponed by the plaintiffs’ claim of a so-called vested right to proceed to construction, because of prior approval of its official plan.

That plan, as we have heretofore said, was completely and effectively disposed of by the enactment of the Stokes Act (301 N. Y. 219, 222).

Regulation of the flow of streams by the construction and maintenance of reservoirs is a matter of State concern in the interest of public health, safety and welfare (Conservation Law, art. VII; Board of Black Riv. Regulating Dist. v. Ogsbury, 203 App. Div. 43, affd. 235 N. Y. 600; Board of Hudson Riv. Regulating Dist. v. Fonda, Johnstown & Gloversville R. R. Co., 249 N. Y. 445).

A regulating district charged with authority to carry out the public purpose is an agency of the State depending for its existence and performing its functions subject to the control and direction of the State. The number and nature of its powers are within the State’s absolute discretion and any alteration, impairment or destruction of those powers by the Legislature presents no question of constitutionality.

It has long been settled by Federal decisions that such powers are not protected by the due process clause of the Fourteenth Amendment to the Federal Constitution (Hunter v. Pittsburgh, 207 U. S. 161, 177-179; Trenton v. New Jersey, 262 U. S. 182; Barnes v. District of Columbia, 91 U. S. 540; Faitoute Co. v. Asbury Park, 316 U. S. 502; Williams v. Mayor, 289 U. S. 36; Pawhuska v. Pawhuska Oil Co., 250 U. S. 394, 397-399; New Orleans v. New Orleans Water Works Co., 142 U. S. 79; Essex Public Road Bd. v. Skinkle, 140 U. S. 334; Brooklyn & Richmond Ferry Co. v. United States, 167 F. 2d. 330, 333).

The courts of this State from very early times have consistently applied the Federal rule in holding that political power conferred by the Legislature confers no vested right as against the government itself. It is on the theory that the power conferred by the Legislature is akin to that of a public trust to be exercised not for the benefit or at the will of the trustee but for the common good. How long it shall exist or how it may be modified or altered belongs exclusively to the people to determine (People v. Morris, 13 Wend. 325, 331-332). The concept of the supreme power of the Legislature over its creatures has been respected and followed in many decisions (Matter of City of Rochester v. Public Service Comm., 192 Misc. 33, affd. 275 App. Div. 172, affd. 301 N. Y. 801; City of New York v. Village of Lawrence, 250 N. Y. 429, 437; People v. Pinckney, 32 N. Y. 377, 395; Darlington v. City of New York, 31 N. Y. 164; Crenshaw v. United States, 134 U. S. 99, 107; Williamson v. New Jersey, 130 U. S. 189, 200; Meriwether v. Garrett, 102 U. S. 472, 511; County of Albany v. Hooker, 204 N. Y. 1).

The contention that the district board is more than an agency of the State because voluntarily formed must be rejected. The district is voluntary in nature only to the extent that a person or public corporation may petition the water power and control commission for its organization (Conservation Law, § 432). However, it is the order of the commission which creates the district (Conservation Law, § 434) for the sole State purpose of constructing reservoirs for river regulation. In fulfilling its purpose, the district exercises only governmental functions in accordance with the mandate of section 2 of article XIV of the State Constitution that the reservoirs shall be constructed, owned, controlled and operated by the State.

The inclusion of Panther Mountain Beservoir in the official plan did not vest in petitioners per se a contractual interest, either in the proposed site or in the construction of a reservoir, which could not be impaired by legislative action. Statutory provisions for public hearings at which objections may be raised (Conservation Law, § 453) and for judicial review of any determination made thereon (Conservation Lawr, § 454) preclude any concept of necessity or inevitability with respect to the ultimate construction of the reservoir. Inherent in the grant of legislative power is the plenary power to alter or revoke. The law altering or revoking does not impair any obligation of contract (Board of Educ. of Dist. No. 6 v. Board of Educ. of Dist. No. 7, 76 App. Div. 355, affd. without opinion 179 N. Y. 556). Actually, there is only one party to a contract by which a governmental corporation is formed. Its board of directors are only trustees for the common good (New Orleans v. New Orleans Water Works Co., 142 U. S. 79, supra). The interests of the plaintiffs then are only those of the State and the State cannot challenge its own acts (Sweeney v. State of New York, 251 N. Y. 417).

As we have pointed out, the district board has no special character different from that of the State. Its only purpose is to construct reservoirs and that, concededly, is a State purpose in the interest of public health, safety and welfare (Conservation Law, § 431). Not only as a board, but also as individuals, the plaintiffs are without power to challenge the validity of the act or the Constitution (Bull v. Stichman, 273 App. Div. 311, affd. 298 N. Y. 516).

The issuance of certificates of indebtedness does not confer upon plaintiffs an independent status by which they have standing, either as a body politic or as individuals, to test the validity of the Stokes Act (Bull v. Stichman, 273 App. Div. 311, affd. 298 N. Y. 516, supra) or to protect the interests of creditors of the district. (Matter of Board of Educ. of Bethlehem Union Free School Dist. No. 1 v. Wilson, 303 N. Y. 107, 115; Board of Educ. of Dist. No. 6 v. Board of Educ. of Dist. No. 7, 76 App. Div. 355, affd. 179 N. Y. 556, supra). Whatever contract the certificate holders may have with the district is subject to legitimate governmental power exercised on behalf of the public welfare. (Norman v. Baltimore & O. R. R. Co., 294 U. S. 240; Stephenson v. Binford, 287 U. S. 251; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Board of Educ. of Dist. No. 6 v. Board of Educ. of Dist. No. 7, supra.)

The plaintiffs, either as a body politic or as individuals, are effectively barred from maintaining condemnation proceedings and have no standing in law either to challenge the applicability of the Stokes Act or the Ostrander Amendment. Having reached the conclusion that the Stokes Act is constitutional and that the plaintiffs lack status to challenge its validity, we see no necessity for passing on any other question.

The order of Appellate Division should be reversed, with costs, and the matter remitted for further proceedings in accordance with the opinion herein. The first, third and fourth questions certified are answered in the affirmative. The second, fifth, sixth and seventh questions certified are not answered.

Lewis, Ch. J., Conway, Desmond, Fuld, Froessel and Van Voorhis, JJ., concur.

Order reversed, etc.

       Note: According to the pleadings the proposed plan was approved by the Conservation Commission, April 30, 1920, and embraced among other properties the enlargement of the Stillwater Reservoir on Beaver River completed in 1923, an integral part of which was the^Panther Mountain regulating reservoir. In furtherance of such plan the board made extensive investigations, surveys, maps, plans and studies including engineering and legal costs and other necessary preliminaries for its construction in accordance with law, all of which were approved after the required public hearing, and the final order filed in each of the required County Clerk’s offices on or about November 23, 1948.

       Note: Approximately 3,500 acres of land belonging to the Adirondack League Club and 1,500 acres of State-owned land — parts of the Forest Preserve — will be needed for the project.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Patrick L. Foley and Charles M. Maino, Respondents.
    Argued May 27, 1954;
    decided July 14, 1954.

      Frank Del Vecchio, District Attorney (Arthur W. Wilson of counsel), for appellant.
    I. The evidence in this case was sufficient as a matter of law to justify the jury in returning a verdict of guilty and was of such a character as to exclude to a moral certainty every other hypothesis but that of the guilt of defendants. (People v. May, 290 N. Y. 369; Knickerbocker v. People, 43 N. Y. 177; Stover v. People, 56 N. Y. 315; Goldstein v. People, 82 N. Y. 231; People v. Richard, 263 App. Div. 586; People v. Galbo, 218 N. Y. 283; People v. Wilson, 151 N. Y. 403; State v. Dickson, 78 Mo. 438; People v. Razezicz, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51; People v. Suffern, 267 N. Y. 115; People v. Lewis, 275 N. Y. 33.) II. There was no error committed by the court in the admission of the testimony of the witness, Harry Gdngold. (People v. Marino, 288 N. Y. 411; People v. Walsh, 262 N. Y. 140; People v. Pauley, 281 App. Div. 223.) III. There was no error committed by the court in denying defendant’s motion to set aside the verdict and granting a new trial on the ground that improper communications had been held with the jury. (People v. Durling, 303 N. Y. 382; People v. Hallock, 267 App. Div. 1030; People v. Gonzales, 293 N. Y. 259; People v. Pauley, 281 App. Div. 223.) IV. The receipt in evidence of conversations of defendants at the time of their apprehension was proper. (People v. Guidici, 100 N. Y. 503.)

      Paul R. Shanahan for respondents.
    I. The prosecution evidence failed to adequately and directly establish “ recent and exclusive possession of stolen property ” by defendants and was therefore inadequate to establish their guilt. (People v. Hakala, 270 App. Div. 612; People v. Lynch, 253 App. Div. 587; People v. Jackson, 255 App. Div. 688; People v. Galbo, 218 N. Y. 283; People v. Razezicz, 206 N. Y. 249; People v. Giordano, 213 N. Y. 575; People v. Fitzgerald, 156 N. Y. 253; People v. Lewis, 275 N. Y. 33; People v. May, 290 N. Y. 369.) II. The order of the Appellate Division amending its reversal originally granted “ on the law and facts ” to a reversal “ on the law ” was error and this appeal should be dismissed. (Otten v. Man

      hattan Ry. Co., 150 N. Y. 395; People v. Moskowitz, 289 N. Y. 69.) III. The ruling's of the trial court admitting in evidence Exhibits 18 and 23 were erroneous and substantially prejudiced respondents. (Matter of Roge v. Valentine, 280 N. Y. 268; Nicholas v. Rosenthal, 283 App. Div. 9; People v. Marino, 288 N. Y. 411; People v. Marshall, 306 N. Y. 223; People v. Carborano, 301 N. Y. 39; People v. Loomis, 178 N. Y. 400; People v. Harvey, 235 N. Y. 282; People v. Tassiello, 300 N. Y. 425; People v. Pignataro, 263 N. Y. 229; People v. Singer, 300 N. Y. 120; People v. Pauley, 281 App. Div. 223.) IV. The receipt in evidence, over objection, of testimony to the effect that Maino admitted the theft of the Gingold car was error. V. The trial court was duty bound to investigate the charges with reference to improper communication with the jury, during deliberation, and his failure to properly instruct the jury, in answer to its request, was error. (People v. Hallock, 267 App. Div. 1030; People v. Gonzalez, 293 N. Y. 259; People v. Pauley, 281 App. Div. 223; People v. Durling, 303 N. Y. 382.)
   Per Curiam.

In this case the convictions of the defendants of the crimes of burglary, third degree, and larceny, second degree, are predicated upon their alleged recent, conscious and exclusive possession of the fruits of those crimes. (Knickerbocker v. People, 43 N. Y. 177, 179-180.) The Appellate Division has unanimously reversed the convictions on the law and has ordered a new trial for the reason that such alleged possession was not established by direct evidence but was based upon circumstantial evidence alone. That, the Appellate Division has held, makes the prosecution’s case subject to the infirmity that the presumption of guilt of the crimes of burglary and larceny is founded in turn on an inference of recent and exclusive possession of the fruits of the crimes.

We agree with the Appellate Division that defendants are entitled to a new trial but not for the reason assigned by the Appellate Division, viz., that recent and exclusive possession of the fruits of the crimes must be established by direct evidence. A jury may properly infer such possession from circumstances. (See People v. Wilson, 151 N. Y. 403.) However, as is evident from the case cited, the circumstances must be established by clear and convincing evidence and must be of such a character as, if true, to exclude to a moral certainty every other inference but that of recent and exclusive possession by defendants. While the testimony adduced presents many facts that are consistent with and point to recent and exclusive possession by defendants of the stolen articles, there is no one fact or series of facts which points inevitably thereto and it cannot be said that the evidence excludes to a moral certainty every other reasonable hypothesis but that defendants had conscious recent and exclusive possession of the stolen property. Therefore, a new trial must be had.

It is unnecessary to and we do not pass upon any other issue raised by defendants.

The order should be affirmed.

Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur; Lewis, Ch. J., and Fuld, J., dissent in the following memorandum: We agree with the court’s formulation of the rule — that, where circumstantial evidence is relied upon, ‘‘ the circumstances must be established by clear and convincing evidence and must be of such a character as, if true, to exclude to a moral certainty every other inference but that of recent and exclusive possession by defendants ” (opinion, pp. 492-493; see, also, People v. May, 290 N. Y. 369, 375; People v. Woltering, 275 N. Y. 51, 61) —but it seems to us that the proof herein more than satisfies the test laid down. Indeed, we would say that defendants ’ guilt was established by the evidence, circumstantial though much of it is, almost to a mathematical certainty.

We would reverse the order of the Appellate Division and reinstate the judgments of the County Court.

Order affirmed.


author: Dye, J. Fuld, J.

text:
    Vernon Park Realty, Inc., Respondent, v. City of Mount Vernon, Appellant.
    Argued April 20, 1954;
    decided July 14, 1954.

      Harry Zimmerman, Corporation Counsel (William Maey of counsel), for appellant.
    I. It was a proper exercise of the appellant’s police power, in 1927, to create a special residential zone of the property constituting the railroad company’s station plaza. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Higbee v. Chicago, B. & Q. R. R. Co., 235 Wis. 91.) II. Respondent purchased the property in question with full knowledge of the zoning restrictions. The hardship complained of is self-imposed. As a conditional vendee, respondent would have had no right to apply for a variance. As a conditional vendee, respondent has no greater right to attack the constitutionality of the zoning ordinance. (Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86; Matter of Hickox v. Griffin, 274 App. Div. 792, 298 N. Y. 365; Dilliard v. Village of North Hills, 276 App. Div. 969; Matter of Taxpayers’ Assn. v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 215; Wardrop v. Fairfield Gardens, 237 App. Div. 605.) III. The change of zone from business to residence cannot now be attacked because: there was acquiescence for twenty-five years on the part of the railroad company, which is binding upon respondent; the railroad company in 1932 not only sought, but obtained, a variance permitting the erection of a filling station; the railroad company, as late as 1948, refused to sell or lease a part of the property to the city for a bus terminal upon the ground that the entire plaza property was essential for parking purposes, and it would be inequitable to permit an attack on the zoning ordinance where, after a period of twenty-five years, the population of the city had doubled and traffic congestion had already reached a strangulation point. (Brous v. Town of Hempstead, 272 App. Div. 31; People v. Jacoby, 304 N. Y. 33; Forbes v. Hubbard, 348 Ill. 165; Curtiss-Wright Corp. v. Village of Garden City, 270 App. Div. 936, 296 N. Y. 839; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Matter of Wulfsohn v. Burden, 241 N. Y. 288; People ex rel. Polcini v. Scofield, 279 App. Div. 762.) IV. Respondent’s proof failed to establish confiscation. On the contrary, the proof showed that the property in question can profitably be put to conforming uses., (Osborne v. Village of East Hampton, 271 App. Div. 837.) V. The designed parking district amendment to the zoning ordinance created additional uses and did not create further use restrictions. (Nappi v. La Guardia, 295 N. Y. 652.)

      J. Robert Blealdey, William F. Bleakley and John F. Minicus for respondent.
    I. The trial court properly declared the Zoning Ordinance of 1927 and the amendment of 1952 to be unconstitutional. (Dowsey v. Village of Kensington, 257 N. Y. 221; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Evanns v. Gunn, 177 Misc. 85; 431 Fifth Ave. Corp. v. City of New York, 184 Misc. 1001; Headley v. City of Rochester, 272 N. Y. 197; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Delaware, L. & W. R. R. v. Morristown, 276 U. S. 182; City of Watertown v. Rodenbaugh, 112 App. Div. 723.) II. Plaintiff may attack the ordinance despite the fact that its predecessor in title asquiesced in it, and despite the fact that plaintiff knew of the existence of the ordinance at the time of purchase. (Evanns v. Gunn, 177 Misc. 85; Union Free School Dist. No. 14 of Town of Hempstead v. Village of Hewlett Bay Park, 198 Misc. 932, 278 App. Div. 706; Ulmer Park Realty Co. v. City of New York, 267 App. Div. 291; Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Lathrop v. Feriola, 276 App. Div. 850.) III. Plaintiff’s right to commence the action was unaffected by the fact that the contract of sale contained an option to withdraw. (Union Free School Dist. No. 14 of Town of Hempstead v. Village of Hewlett Bay Park, 198 Misc. 932, 278 App. Div. 706; Dilliard v. Village of North Hills, 276 App. Div. 969; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158.) IV. The letter from the railroad company officer was properly refused in evidence. No waiver resulted by virtue of the application of plaintiff for a change of zone. Approval of the Public Service Commission of the sale of the premises to plaintiff was not required. The judgment was in proper form. (Delaware, L. & W. R. R. v. Morristown, 276 U. S. 182; Great Northern Ry. v. Minnesota, 238 U. S. 340; Yates v. Van De Bogert, 56 N. Y. 526.)
   Dye, J.

The City of Mount Vernon appeals as of right on constitutional grounds from a judgment declaring invalid and void, insofar as they affect the plaintiff’s property, the City Zoning Ordinance and Zoning Map of the City of Mount Vernon, enacted and adopted March 22, 1927, as amended March 9, 1949, and the amendment thereto, chapter 4A, enacted and adopted January 16, 1952.

The subject premises are known locally as the “Plaza”, consisting of an open area containing approximately 86,000 square feet adjacent to the New York, New Haven & Hartford Railroad station. It is in the middle of a highly developed Business “ B ” district (Zoning Ordinance, 1927, ch. 12) and as such constitutes an island completely surrounded by business buildings. It has always been used by the patrons of the railroad and others for the parking of private automobiles. "When the city first enacted a zoning ordinance, the Plaza was placed in a Business “ B ” district (Zoning Ordinance adopted 1922), later being changed without objection to a Residence “ B ” district (Zoning Ordinance adopted 1927), following which the parking of automobiles was continued as a valid nonconforming use. In 1932, upon the application of the railroad and its then tenant, the city granted a variance to permit the installation of a gasoline filling station. Later and in 1951 the railroad sold the premises to the plaintiff, the title being closed June 21, 1951. The purchaser applied without success for a variance to permit the erection of a retail shopping eenler, a prohibited use as the zoning ordinance then read (Zoning Ordinance adopted 1927, ohs. 9-10).

The plaintiff then commenced this action for a judgment declaring the 1927 ordinance unconstitutional, unreasonable and void and not binding on the plaintiff insofar as the same pertains to the use of plaintiff’s premises, and for injunctive relief. After joinder of issue and on January 16, 1952, the common council amended the zoning ordinance by adding thereto a new district to be known as “ D. P. D.” (Designed Parking District). In substance, the effect of this amendment was to prohibit the use of the property for any purpose except the parking and storage of automobiles, a service station within the parking area and the continuance of prior nonconforming uses (Zoning Ordinance as amende^, January JR _ if)52$ ch. 4A). Faced with this change in classi^5a^qp,f|iie jyainu|f amended its complaint so as to include an attack on both tbe zoning* ordinance and the 1952 amendment. The amended complaint alleges that the ordinance and its 1952 amendment, as pertaining to the plaintiff’s property, work an undue hardship as to use, destroy the greater part of its value, are discriminatory as a denial of the equal protection of the law, and amount to a taking of private property without just compensation contrary to due process and, as such, are constitutionally invalid and void. The city justifies the ordinance and its amendment by reason of the congested traffic and parking conditions now existing in Mount Vernon which, itpSays, have become so acute as to reach a .strangulation point. \ However compelling and acute the community traffic problem may be, its solution does not lie in placing an undue and uncompensated burden on the individual owner of a single parcel of land in the guise of regulation, even for a public purpose.^ True it is that for a long time the land has been devoted to parking, a nonconforming use, but it does not follow that an ordinance prohibiting any other use is a reasonable exercise of the police power. "While the common council has the unquestioned right to enact zoning laws respecting the use of property in accordance with a well-considered and comprehensive plan designed to promote public health, safety and general welfare (General City Law, § 83), such power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably (Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405; Matter of Brous v. Smith, 304 N. Y. 164) and this is so whenever the zoning ordinance precludes the use of the property for any purpose for which it is reasonably adapted (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222). By the same token, an ordinance valid when adopted will nevertheless be stricken down as invalid when, at a later time, its operation under changed conditions proves confiscatory (Abie State Bank v. Bryan, 282 U. S. 765) such, for instance, as when the greater part of its value is destroyed (Dowsey v. Village of Kensington, 257 N. Y. 221), for which the courts will afford relief in an appropriate case (Matter of Eaton v. Sweeny, 257 N. Y. 176).

On this record, the plaintiff, having asserted an invasion of his property rights (cf. Rodgers v. Village of Tarrytown, 302 N. Y. 115), has met the burden of proof by establishing that the property is so situated that it has no possibilities for residential use and that the use added by the 1952 amendment does not improve the situation but, in fact, will operate to destroy the greater part of the value of the property since, in authorizing its use for parking and incidental services, it necessarily permanently precludes the use for which it is most readily adapted, i.e., a business use such as permitted and actually carried on by the owners of all the surrounding* property. Under such circumstances, the 1927 zoning ordinance and zoning map and the 1952 amendment, as they pertain to the plaintiff’s property, are so unreasonable and arbitrary as to constitute an invasion of property rights, contrary to constitutional due process and, as such, are invalid, illegal and void enactments (U. S. Const., 5th and 14th Amendts; N. Y. Const., art. I, §§ 6, 7; Rockdale Constr. Corp. v. Incorporated Vil. of Cedarhurst, 301 N. Y. 519; Arverne Bay Constr. Co. v. Thatcher, supra; Dowsey v. Village of Kensington, supra; Matter of Eaton v. Sweeny, supra; Euclid v. Ambler Co., 272 U. S. 365; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167).

Mention should be made of appellant’s contention that plaintiff has no right to bring this action because it has not shown good faith in that the contract of purchase provided for a reconveyance of the premises to the seller, at the option of the purchaser, in the event that, within one year from the date of closing title, the purchaser was unable to obtain from the city or through court action a change of zoning so as to permit use of the premises for a business purpose, and, in that it purchased the property with knowledge of the zoning restrictions. There is no merit to this claim of lack of good faith. The plaintiff took title to the property by deed prior to the enactment of the 1952 amendment and could not very well have known or anticipated that the city, under the guise of regulating traffic, would permanently limit the use of the property to the parking of automobiles and incidental services, such as we have said constituted an illegal invasion of the plaintiff’s property rights. Under such circumstances, the validity of the zoning ordinance and its zoning map may be attacked at any time and at any stage of the proceedings. The right to challenge the validity of an ordinance by action for a declaratory judgment is not to be confused with a proceeding under article 78 of the Civil Practice Act to review a discretionary determination of a zoning board, as in Matter of Hickox v. Griffin (298 N. Y. 365). There, the evidence was deemed insufficient to warrant granting a variance of the zoning ordinance under applicable principles of law (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Ernst v. Board of Appeals on Zoning of City of New Rochelle, 298 N. Y. 831). Nor should this right of action be confused with the question of who may bring an article 78 proceeding as a “ person aggrieved ” (Matter of Hickox v. Griffin, supra; Matter of Taxpayers’ Assn. v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 215). Our recent case (Matter of Clark v. Board of Zoning Appeals of Town of Hempstead, 301 N. Y. 86) is not authority to the contrary. There, too, the issue was a reasonable exercise of administrative discretion. The ordinance as a valid enactment was not challenged.

Purchase of property with knowledge of the restriction does not bar the purchaser from testing the validity of the zoning ordinance since the zoning ordinance in the very nature of things has reference to land rather than to owner (Bassett on Zoning, p. 177). Knowledge of the owner cannot validate an otherwise invalid ordinance. The owner’s right to attack the validity of a zoning ordinance is not waived by the circumstance that he has on a previous occasion applied for a variance. Such an application is, primarily, an appeal to the discretion of the board and, for that purpose, the validity of the ordinance is assumed but that does not operate to confer validity if, in fact, as here, the zoning ordinance is clearly confiscatory (cf. Arverne Bay Constr. Co. v. Thatcher, supra). Conversely, an attack on the legality of a zoning ordinance prior to any request for a variance has long been accepted as proper procedure (Dowsey v. Village of Kensington, supra).

In view of all that has been said, we find it unnecessary to mention the appellant’s other points beyond saying that we regard them as wholly lacking in merit.

The judgment appealed from should be affirmed, with costs.

Fuld, J.

(dissenting). I cannot agree that the zoning ordinance of the City of Mount Vernon here under attack is unconstitutional.

A zoning ordinance is confiscatory and, hence, unconstitutional only when it “ so restricts the use of property that it cannot be used for any reasonable purpose ” (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222, 232) or when it restricts it to a use for which the property is not adapted ”. (Dowsey v. Village of Kensington, 257 N. Y. 221, 231.) But, if “ the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” (Euclid v. Ambler Co., 272 U. S. 365, 388; see, also, Shepard v. Village of Skaneateles, 300 N. Y. 115, 118.) It seems to me that neither the 1927 ordinance nor its 1952 amendment is so unreasonable as to permit us to interfere with the judgment of Mount Vernon’s Common Council.

In the present case, although the 1927 ordinance placed the property in a residential zone, all of the area was in fact employed for parking purposes since 1922. That being so, we may not ignore realities and say that the ordinance was invalid because it singled out a small area in the midst of a large business zone for residential use. For all practical purposes, the district continued, as it had been, zoned for parking. Adjacent to the New York, New Haven & Hartford Railroad, the area served the community’s obvious need for parking facilities. Accordingly, the continuance — indeed, even the creation- — of a special parking zone was more than warranted. Serving, as it did, the parking needs of railroad passengers, permitting easier access to the trains and reducing congestion in the crowded business section, the ordinance not only afforded the owner an entirely reasonable use for his property, but advanced the public good and well-being.

Nor may the ordinance be condemned because it affected but a small area. It has long been recognized that, if it is done for the general welfare of the community as a whole, a municipality may, as part of a comprehensive zoning plan, set aside even a single plot in the center of a large zone devoted to a different use. (See, e.g., Rodgers v. Village of Tarrytown, 302 N. Y. 115, 124; Nappi v. La Guardia, 295 N. Y. 652; Higbee v. Chicago, B. & Q. R. R. Co., 235 Wis. 91.) And land adjacent to a railroad station has been regarded as a particularly appropriate subject for such treatment. (See Higbee v. Chicago, B. & Q. R. R. Co., supra, 235 Wis. 91.)

The ordinance being valid in 1927, it is valid today unless conditions have changed. Not even respondent claims that they have, and the fact is that, except for the erection of a gas station on part of the space involved, neither the area nor the surrounding business district has undergone any alteration. There has, of course, been an increase in population and in the number of automobiles, but that — a general and widespread change affecting all of Mount Vernon — only serves to render the long-continued parking use still more suitable and necessary. It is, perhaps, true, that a parking lot may not afford a purchaser as great a return on his money as a shopping center, but that circumstance, standing alone, does not justify invalidation of the ordinance. (See, e.g., Shepard v. Village of Skaneateles, supra, 300 N. Y. 115, 120; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 302.)

There is at least one other reason for upholding the 1927 ordinance. While mere acquiescence in an unconstitutional ordinance cannot serve to validate it (see, e.g., Matter of Wuttke v. O’Connor, 306 N. Y. 677), the fact that for over twenty-five years the owner railroad actually occupied the property satisfactorily as a parking space — without objection or the slightest claim that it effected a confiscation — cannot be overlooked. Since an ordinance is unconstitutional only if it bars any reasonable ” use of property, it is difficult to see how it may be attacked successfully as confiscatory or invalid where it appears that the land was put to a “ reasonable ” use for a quarter of a century under conditions which have up to the present remained unchanged. And, that being so, a vendee, such as respondent, who buys with full knowledge of the applicable zoning regulations, certainly stands in no better or stronger position than his predecessor in title. (Cf., e.g., Matter of Wuttke v. O’Connor, 306 N. Y. 677, supra; People ex rel. Arseekay Syndicate v. Murdock, 265 N. Y. 158.)

The 1927 law, being, as I believe, constitutional, no fault may be found with the 1952 amendment. That merely brought about by enactment what had previously been accomplished by a nonconforming use and is no more subject to attack than the 1927 ordinance.

If I be right, if the ordinance and amendment are constitutional, it is unnecessary to decide whether the option — given to respondent, when it acquired the premises, to reconvey them back to the seller if unable to obtain a change of zoning so as to permit buildings for offices or for stores on the premises ’ ’ — prevents it from attacking the ordinance as invalid.

I would reverse the judgment rendered below.

Lewis, Ch. J., Conway, Desmond, Froessel and Van Voorhis, JJ., concur with Dye, J.; Fuld, J., dissents in opinion.

Judgment affirmed.

      . In 1932, the Railroad Company, which owned the property until 1951, and its then tenant applied for and obtained a variance, permitting the construction of a gasoline filling station.


author: Conway, J.

text:
    In the Matter of the Construction of the Will of Nathaniel Potter, Deceased. Fred J. Munder et al., as Acting Successor Trustees under the Will of Nathaniel Potter, Deceased, et al., Appellants; Ethel F. Young, Individually and as Executrix of Bertha L. Young, Deceased, et al., Respondents.
    Argued April 12, 1954;
    decided July 14, 1954.

      William L. Storey and John M. Lockwood for trustees, appellants.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman and Wendell P. Brown of counsel), in person, for Nathaniel L. Goldstein, appellant.
    The dominant purpose expressed in the will is to make an education more readily available to those otherwise financially unable to avail themselves thereof. Testator’s citation of the academy was simply an expression of desire as to the facility to be used in carrying out this general charitable purpose. The trust did not ipso facto fail when the academy went out of existence. (Matter of Neher, 279 N. Y. 370; Matter of Harrington, 245 App. Div. 252; Matter of Tiffany, 157 Misc. 873; Matter of Robinson, 203 N. Y. 380; Matter of Durbrow, 245 N. Y. 469; Matter of Dillenback, 189 Misc. 538, 273 App. Div. 1051; Graff v. Harrington, 137 Misc. 712; Matter of Lawless, 194 Misc. 844, 277 App. Div. 1045; Williams v. Williams, 8 N. Y. 525.)

      John Clark Toaz for Union Free School District No. 3 of the Town of Huntington, appellant.
    I. The trust set up under the will of Nathaniel Potter expresses a paramount purpose of educating the children of the poor. This is a general charitable purpose. This purpose exists today even as it did when the testator died. II. The legislative act of 1870 recognizes the existence of a valid trust for a general charitable purpose and is not unconstitutional. III. The case at bar is not one for the application of the doctrine of cy pres. The purpose of the trust still exists. The only question is the procedure for the application of the income. (Williams v. Williams, 8 N. Y. 525; Trustees of Sailors’ Snug Harbor v. Carmody, 158 App. Div. 738, 211 N. Y. 286; Saltsman v. Greene, 136 Misc. 497, 231 App. Div. 781, 256 N. Y. 636.) IV. The school district continues to be a proper instrumentality for carrying the testator’s general charitable purpose into effect. If the trustees are correct in their position that the payment of the income under the statute of 1870 does not fulfill the purpose of the trust, then the payment should be made to the school district in such a way as to effectuate the testator’s intent.

      Richard C. Cotter, special guardian for infants, incompetents, or unknown heirs at law, respondents, and Charles H. Street for Ethel F. Young, respondent.
    I. The trust was for a specific and not for a general charitable purpose. When the Huntington Academy went out of existence in the year 1858, the purpose of the trust failed, and all beneficial interest in the trust fund thereupon vested in the next of kin of testator. (Hart v. Socony-Vacuum Oil Co., 291 N. Y. 13; Matter of Thompson, 217 N. Y. 111; Williams v. Williams, 8 N. Y. 525; Morris v. Sickly, 133 N. Y. 456; Matter of Chamberlin, 289 N. Y. 456; Matter of Hoffman, 201 N. Y. 247; Matter of Watson, 262 N. Y. 284; Matter of Buechner, 226 N. Y. 440; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Matter of Durand, 250 N. Y. 45; Matter of Tamargo, 220 N. Y. 225.) II. Prior to 1893 the cy pres doctrine had no existence in the jurisprudence of this State. Chapter 701 of the Laws of 1893 (Personal Property Law, § 12), which confers certain cy pres powers on the Supreme Court and Surrogate’s Courts, has no application in this case. (Beekman v. Bonsor, 23 N. Y. 298; Bascom v. Albertson, 34 N. Y. 584; Holmes v. Mead, 52 N. Y. 332; Holland v. Alcock, 108 N. Y. 312; Tilden v. Green, 130 N. Y. 29; People v. Powers, 147 N. Y. 104; Murray v. Miller, 178 N. Y. 316; Butler v. Trustees, 92 Hun 96; Saltsman v. Greene, 136 Misc. 497, 231 App. Div. 781, 256 N. Y. 636; Matter of Merritt, 280 N. Y. 391.) III. The Act of 1870, in reliance upon which the trustees have made payments of the annual income of the fund to the appellant Union Free School District No. 3 of the Town of Huntington and its predecessor, the Union School District of Huntington, was invalid so far as the fund here in question is concerned. (White v. Howard, 46 N. Y. 144; Matter of Pell, 171 N. Y. 48; Murray v. Miller, 178 N. Y. 316; Dammert v. Osborn, 140 N. Y. 30; People v. Powers, 147 N. Y. 104; People ex rel. McDonald v. Keeler, 99 N. Y. 463.) IV. If all beneficial interest in the trust fund did not vest in the next of kin of the testator in 1858, when the academy went out of existence, it vested in such next of kin at the latest in the year 1872 when the trustees made their first payment of income on the fund to the Union Free School District of Huntington. Such payment was a diversion of income prohibited by the will. V. The rights of the respondents have not been lost by loches. (Matter of Canfield, 165 Misc. 66.)
   Conway, J.

The facts here are not in dispute. On November 21,1841, one Nathaniel Potter died, leaving a will which had been executed on November 9,1841. During his lifetime the decedent had been one of the founders of a private educational institution situated in the town of Huntington, N. Y., and known as the Huntington Academy. That academy had been organized in about 1793, and it continued to function until 1858, when the Union School District purchased it and the land on which it stood, and the building was then torn down. The Union School District then purchased one and one-half acres of the land adjoining the academy and erected a new school building on that enlarged parcel of land.

In his will, after providing for a niece and a nephew, the testator made a gift in trust for the support of a minister and then made the following provision, which we shall incorporate herein in full in order that no meaning may be lost in a paraphrase of it.

“ With a desire to raise the standard of intellectual and moral improvement among the poor, I constitute and appoint Zophar B. Oakley, John Wood and Charles Stinges of thé Village of Huntington and their successors to be appointed in the manner hereinafter authorized, a board of trustees of a fund which I hereby constitute for the exclusive education of the children of the poor and in order to maintain the number of the said trustees in perpetuity, I hereby authorize the surviving or remaining trustees to fill up any vacancy as often as it shall occur by death resignation or removal from the village of any of the said trustees by the choice of another to be entered on the minutes of their proceedings.

I give and bequeath to the above named trustees' and their successors appointed as aforesaid the sum of six thousand dollars in trust for a perpetual fund for the education of the children of the poor who shall be educated in the academy in the village of Huntington or in case of the destruction of the academy by fire or otherwise then in the school house next west of the academy untill [sic] it shall be rebuilt — no part of this fund ever to be appropriated to the erection or repair of buildings.

“It is my will that this fund shall be managed in manner following to wit the principal to be loaned on bond secured by mortgage on lands of twice the value of the sum loaned and one half of the interest annually accruing to be added to the principal until the whole fund amounts to the sum of ten thousand dollars — the other half of the interest to be appropriated and expended in the education of the children of the poor — and when the said fund by the addition of the interest as aforesaid shall amount to the said sum of ten thousand dollars then it is my will that the whole interest of the said fund shall be annually appropriated and expended in the education of the poor in the academy in the village of Huntington— It is my will that the instruction shall be limited to a good english education and shall be extended to the children of the poor of every description without discrimination of denomination or complexion — in order to prevent any doubt respecting the degree of poverty of the parents whose children are intended to be benefitted by this institution, it is my intention that the children to be educated on this fund shall be such whose parents names are not on the tax list — and if the interest annually accruing shall be more than sufficient for this purpose that in such case the surplus shall be expended on the education of children whose parents stand lowest on the tax list untill [sic] the whole is absorbed. It is not my intention to deprive these children of any interest they may have in the common school money but that the fund hereby constituted shall he forever kept separate and distinct from that and he {sic] employed in furtherance of and beyond that fund and that no trustee or commissioner of common schools shall ever he a trustee of this fund. It is my will that the said trustees shall keep a regular account of the said fund and a register of the names and number of the children benefited by the said interest and shall annually on a given day in every year exhibit a statement of the fund and of their proceedings to a committee consisting of one suitable person to be chosen by each of the churches in the village of Huntington to examine the same who it is my desire shall give all the aid in their power to the said trustees in the executing — their duties. As this fund is purely of a charitable nature it is hoped that the said trustees will render their services gratuitously or at least will be satisfied with a reimbursement of their necessary expenses.

“ Any diversion of this fund or interest from the exclusive education of the children of the poor shall be deemed a forfeiture of the trust and in such case I bequeath the monies constituting the said fund to those to whom I bequeath the residue of my estate. If the powers of the board of trustees herein constituted shall prove insufficient for the execution of the duties of the trust, it is my will that they shall make application for a special act of incorporation to enable them to give complete effect to my intentions as above stated. It is my will that the children and grandchildren of my nephews & nieces educated at the academy shall be educated out of this fund. After the decease of my niece I give and bequeath the said two thousand dollars of which she is to have to the use or the surplus thereof to the trustees of the fund for the education of the children of the poor to be put at interest as the monies of that fund are directed to be put and it is my will that the said trustees shall annually appropriate the interest of one thousand dollars to the aid and relief of such necessitous persons or families as are not on the town to be distributed in their sound discretion for ever hereafter.

“ The remainder to be added to the fund for the education of the children of the poor and the interest applied in the same manner as the interest of that fund.” (Emphasis supplied.)

The present proceeding was commenced by a verified petition dated February 19, 1949, wherein the successor trustees to the trustees named in the will prayed for a construction of the will and a direction as to the application of the funds involved. Those petitioner trustees expressed the view that the children of the poor presently receive the same educational benefits as the well-to-do on the primary and secondary school levels in Huntington, and suggested that the funds could be employed to enable one or more needy children to obtain a higher education than high schools. The school district has taken the position that such a direction is unnecessary inasmuch as there are still certain expenses incident to attendance at high school which must be met by the students themselves or their parents, and that such expenses may still prevent children of the poor from completing high school.

Appellants have based their entire appeal upon the premise that the trust was not limited to education of the children of the poor at the academy alone, but that decedent had a general charitable intent to assist the needy children, with a preference that they be educated at the academy of which the testator was a founder.

Respondents have argued (a) that the trust involved was for a specific, not a general charitable purpose, and that that purpose failed when the academy went out of existence in 1858 and the trust thereupon ended, (b) that there was no cy pres doctrine in New York prior to the Tilden Act of 1893, and that that act is not applicable here, (c) that the Act of 1870 — which enabled the Union Free School District herein to receive funds under this particular trust — was invalid, (d) that — assuming the trust did not end when the academy ceased to exist — payment of the trust moneys to the Union Free School District constituted such a diversion of the funds as to end the trust under the terms of the will, and (e) that the respondents have not been guilty of loches.

The Surrogate held that the trust failed when the academy was absorbed into the common school system, and that the testator’s next of kin are entitled to the fund.

The precise trust involved in the present case came before this court over one hundred years ago, in Williams v. Williams (8 N. Y. 525) decided in October, 1853. The parties before us then were the residuary legatees — predecessors in interest of the present respondents, as well as the predecessors in interest of the present trustees (pp. 526, 529). Insofar as some of the present litigants succeed to the interests of parties to the Williams case (supra), they are foreclosed from relitigating such issues as were decided in that case (see Rivara v. Stewart & Co., 241 N. Y. 259, 266-267; Morris v. Henry, 221 N. Y. 96). If it were litigated and if we decided in 1853 that this trust for the education of the children of the poor was a trust for a particular charitable purpose, then insofar as the doctrine of res judicata binds the present trustees and the respondents, that issue would not be before us now. The Attorney-General and the Union School District were not, apparently, represented in court in the Williams case, and thus they are not precluded from litigating any issues here.

The opinion in the Williams case {supra) indicates that we were faced with two principal objections to the trust for needy children (1) that the beneficiaries were a class whose membership changed from time to time, and (2) that the trust was not limited by lives in being, but was in the nature of a perpetuity (pp. 529, 540). We said that, unless the doctrine of charitable uses and trusts applied here, the trust for education would fall because of those objections {id., p. 540). After reviewing the history of the doctrine of charitable trusts, we decided that that doctrine was in effect in this State. Although doubtful “ whether we could proceed upon the notion of approximation, where it is impossible to execute the gift, substantially according to the terms of the grant or devise ”, we held that “ Where the gift is capable of being executed by a judicial decree * * * [we] know of no reason why the court should refuse to execute it ” (p. 548). We said that it was unnecessary to employ the cy pres doctrine, since we decided that (1) there were trustees capable of taking the funds in the first instance and provision made in the will for their replacement, (2) the beneficiaries were readily ascertainable and practically limited as a class to the children of the poor residents of Huntington, and (3) the purpose of the trust was sufficiently definite. With respect to that last point, Judge Denio wrote: 11 The trust is for the education of the children of the poor, at a particular institution of learning, which I presume to be an incorporated academy * * * ” (p. 549). Our principal discussion revolved around the issue whether the beneficiaries — not the purpose — were so indefinite that the trust would be unenforcible by judicial decree. We were satisfied that the purpose — providing a 11 good English education ’ ’, such as the academy was giving, to the children of á specified group of readily ascertainable poor persons in a limited locality — was definite enough so that the trust could be enforced. Whether that was a general or a particular charitable purpose it was unnecessary for us to determine then inasmuch as the purpose was clear, and the means or instrumentality suggested by the testator for carrying out that purpose — i. e., the academy — was then in existence. It was not until 1858, when the academy went out of existence, that the precise issue arose which is now before us: was this trust intended to be limited in duration to the period of the continuance of the academy? As we read the Williams case, we did not hold that this trust for education was limited in time to the period of existence of a particular institution.

The parties who litigated the Williams case (supra) apparently did not continue or resume their attack on the trust therein involved until the present construction proceeding between their successors in interest. The opinion itself, however, has had a famous though troubled history in this court. Although subsequent to our decision in Williams v. Williams we reiterated the statement of Judge Dekto that the principles governing charitable trusts were in force in New York (see Leonard v. Burr, 18 N. Y. 96), our opinions demonstrated a tendency to restrict the applicability of those principles. (See Owens v. Missionary Soc. of M. E. Church, 14 N. Y. 380; Trustees of Theological Seminary of Auburn v. Kellogg, 16 N. Y. 83; Beekman v. Bonsor, 23 N. Y. 298; Downing v. Marshall, 23 N. Y. 366.) It seems, moreover, that there was a group of persons opposed to the doctrine of charitable uses and trusts, and who sought to prevent that doctrine from continuing in New York. (See opinion of Chief Judge Pabkeb in Allen v. Stevens, 161 N. Y. 122, in which the struggle to abolish charitable uses and trusts is traced.) Thus, in Levy v. Levy (33 N. Y. 97) we stated that charitable uses and trusts had been abolished in New York by the Revised Statutes. Similarly, in Bascom v. Albertson (34 N. Y. 584) we restated our belief that charitable uses could not exist in this State, at the same time attempting to distinguish the Williams case by pointing out that in that case we had found the purpose and the beneficiaries of the trust sufficiently definite and limited to enable the trust to be enforced by judicial decree. We made no such attempt, however, in Holmes v. Mead (52 N. Y. 332, 338), where we said that the Williams case had been “ disaffirmed and overruled ”, and that perpetual trusts for charities were not permitted in this State. After quoting the statute (Rev. Stat. of N. Y., part II, ch. I, tit. II, § 45) — “Uses and trusts, except as authorized and modified in this article, are abolished” — we wrote that: “ The statute abolishes all uses and trusts, and thus leaves the courts no discretion. All trusts, except those specifically saved, are grouped together and prohibited. The trusts retained are four in number, and are active trusts for special, temporary purposes in the interest of individuals. They do not include perpetual trusts for charity, or for the benefit of classes or of corporations ” (p. 339).

Following the Holmes case (supra) the decisions of this court were fairly consistent in adhering to the theory that charitable uses and trusts were void in New York. (See cases cited in Allen v. Stevens, 161 N. Y. 122, 139-140, supra.) In 1893, however, the Legislature passed what has come to be known as the Tilden Act (L. 1893, ch. 701, now Personal Property Law, § 12). That law, the respondent has conceded, “ was intended to restore the doctrine of the Williams case that the provisions of the Revised Statute forbidding perpetuities do not apply to charitable trusts * * *.” It is clear, therefore, that the Williams case (supra) held that charitable trusts had not been abolished by the Revised Statutes, and that the Legislature in 1893 approved of that rule. That conclusion of legislative approval is further strengthened by the fact that in 1870 an act was passed by the State Legislature for the specific purpose of empowering the Union Free School District of Huntington to receive funds from the trust set up by Potter if the trustees wished to give them (L. 1870, eh. 306). It was an enabling act, but that act was enacted, necessarily, upon the assumption that the trust for education of the children of the poor was in force and effect, and that depended upon the applicability of the doctrine of charitable uses and trusts. Hence the Legislature in 1870 impliedly assented to the ruling of the Williams case that charitable trusts and the rules relating thereto were in effect in New York.

As we have already pointed out, the facts here are not in dispute. The intention of the testator in creating the trust for the children of the poor is, therefore, a question of law and not one of fact, for as we declared in Underhill v. Vandervoort (56 N. Y. 242, 247): The extrinsic facts being uncontroverted, it is the duty of the court to interpret the language of the will as read in the light of those facts. The construction of the language is not for the jury but for the court, and where the intent of the testator is to be ascertained from his language alone, or from his language and surrounding circumstances about which there is no dispute, a question of law and not of fact is presented. ’ ’

When we first considered the will, in Williams v. Williams (supra), we determined that the settlor had intended that the funds in the hands of the trustees be used for the education of the children of the poor. The precise issue now before us is whether, when we made that finding, we precluded a further clarification of the testator’s intent. In other words, may we now say that when Potter executed this will he intended that the children to be benefited by the fund be educated only at the academy, or did he intend a broader purpose for the trust moneys ?

In the Williams case (supra), Judge Denio, after considering the English doctrine of charitable uses and trusts, said that in this case there was no necessity for an application of the cy pres rule. He reached that conclusion because, in his opinion, the trustees, the beneficiaries and the purpose of the trust were sufficiently definite so that this trust could be enforced by judicial decree (Williams v. Williams, supra, p. 549). Our language relevant to the purpose of the trust was as follows (ibid.): “ The trust is for the education of the children of the poor, at a particular institution of learning, which I presume to be an incorporated academy * * *.”

That language of Judge Demto which was dictum merely must be read against the background of the will. The first mention made in the will of this fund for education appears in the paragraph commencing: With a desire to raise the standard of intellectual and moral improvement among the poor, I constitute and appoint * * * a board of trustees of a fund which I hereby constitute for the exclusive education of the children of the poor and in order to maintain the number of said trustees * *

In that passage of his will the testator did not say that he intended to limit the benefit of the education he was financing to any particular institution. He omitted the qualifying words at the academy ” from that provision just as he did from a subsequent provision of the will wherein he directed that the trust was to end if ever any part of the fund was diverted from the exclusive education of the children of the poor. Likewise, although he referred to the education of the children of the poor and education of the poor on seven different occasions in that portion of the will relating to this trust, the testator qualified those references with mention of the academy on but two occasions. The first of these was in that paragraph wherein he gave to the trustees and their successors $6,000 in trust for a perpetual fund for the education of the children of the poor who shall. be educated in the academy * * The other occasion was in the next paragraph of the will, in which the decedent gave instructions regarding payments from the fund. In that paragraph he first referred to “ the education of the children of the poor # * * ” without mention of the academy, then he referred to ‘ ‘ the education of the poor in the academy in the village of Huntington ”. That was merely descriptive of a place where education was being furnished. It did no more than indicate a wish or preference. From those two references we cannot conclude as a matter of law that this •trust was limited to assisting in the education of needy children only at the academy. Constantly throughout that part of the will relating to this trust the decedent referred to children, and to the education of children — specifically, on thirteen different occasions — whereas the academy was mentioned by name but five times, and only two of those times were instances from which the respondents might draw their conclusion that this trust was limited to the lifetime of the academy. Furthermore, the testator indicated on at least three separate, occasions in the part of the will dealing with this trust that he intended that trust to be perpetual. He also indicated that, if the academy burned, the funds were to be used at the school next west of the academy.

In Matter of Pattberg (306 N. Y. 835) we acted upon a principle which has long guided this court — that where a testator has apparently sought to leave money for a charitable purpose, a liberal construction is to be given to the terms of the will in order to uphold it and validate the bequest. The entire applicable portion of the will must be read and considered, and not merely isolated segments, and the intent is to be gleaned from that complete consideration (see, also, Matter of Pepper, 307 N. Y. 242; Matter of Neher, 279 N. Y. 370). In the present case it is clear that, when read in the light of these principles, the testator here intended to provide a never-ending source of financial aid to needy students without limiting that charitable purpose of the funds to the lifetime of any specific institution. There are numerous references to children, the poor and their education, without mention of the academy in the same clause. The references to the academy are such that the more reasonable conclusion is that the testator hoped and expected that the education of the needy children would be at the academy rather than elsewhere. The decedent, who was one of the founders of the academy, might be expected to make some provision for it in his will and to wish that the children of the poor for whom he was making provision by the trust funds would be educated in that academy. Thus at one and the same time he would provide for the education of needy children who might otherwise be unable to attend school, and he would also be providing a source of income to the academy at which those children would incur the expenses that the fund was intended to defray. We do not think we can say, however, as a matter of law, that we must construe the language of the will, in view of our discussion of the clauses in it (supra) to mean that the continued existence of the academy was to be a condition precedent to the continued education of the children of the poor. The continued existence of children of the poor was a certainty, when considered in the light of history. The continuance of an academy in a town into perpetuity was problematical, to put it mildly. The desire of testator to aid and educate the children of the poor would continue despite the fact that a particular educational institution in the town had ceased to function — otherwise the testator would have said so as clearly and possibly as repetitiously as were his expressions of his wish to aid in the education of the children of the poor.

The only question passed upon by the courts below was whether or not Nathaniel Potter was motivated by a general charitable intent when he provided in his will for the creation of this trust for the education of the children of the poor. Those courts held that he was not motivated by such an intent. Accordingly, the courts below found it unnecessary to determine any other question. We, on the other hand, have concluded that this testator did have such a general charitable intent. Therefore, the case must be sent back to the Surrogate’s Court in order that other issues, if any, not previously passed upon may be determined and so that it may also be determined to what purposes the trust funds shall now be put.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, and the matter remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion, with costs to abide the event.

Lewis, Ch. J., Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Order reversed, etc.