Opinion
December 27, 1949.
Action to recover damages for having caused plaintiff's real property to become unsaleable or unmarketable, or both. Order denying appellants' motion, under rule 106 of the Rules of Civil Practice, to dismiss the complaint for failure to state facts sufficient to constitute a cause of action, reversed on the law, with $10 costs and disbursements, and the motion granted, without costs. The plaintiff is the owner of several lots which are shown on the defendant city's master plan (General City Law, § 28-a) as lying within the boundaries of a proposed parkway. It is alleged that the defendants have instructed the city's building department not to issue permits for the construction of buildings on the said lots, and have made public statements to the effect that such permits will not be issued. The lots are not shown on the official city map or plan (General City Law, § 26) nor on any amendment thereto which has been filed (General City Law, § 29). Section 35 does not authorize the withholding of building permits at a time prior to the filing of the official map, or amendments thereto, showing the inclusion of the private owner's lots in the bed of any street or highway. There has been no actual refusal of a permit, and there appears to be no authority for the maintenance of the action. Adel, Wenzel and MacCrate, JJ., concur; Carswell, Acting P.J., and Johnston, J., concur in the result. [ 196 Misc. 360.]