Opinion
June 1, 1961
Appeal by plaintiffs from a judgment of the Supreme Court, at Special Term, which, on motion of defendant, dismissed the complaint "upon the ground that this Court does not have jurisdiction of the person of the defendant or of the State of New York or of the subject of the action". (Civ. Prac. Act, § 237-a; Rules Civ. Prac., rule 106, subd. 1; rule 107, subd. 1.) Plaintiffs are the owners of substantially improved business property fronting on either side of Route 17 in the Town of Tuxedo, Orange County. They sue in equity for a judgment declaring that they have rights of access to and from their premises and adjoining Route 17 in their entirety and that defendant be enjoined permanently from erecting and maintaining guardrailings which limit access thereto from the public highway and from taking or threatening to take lands of plaintiffs for such purpose. Defendant is Superintendent of Public Works of the State of New York. Although the complaint names him in his official character, plaintiffs expressly disclaim an intent to sue him in this capacity. Their brief states: "The complaint is against J. Burch McMorran, individually. It was carefully drawn to identify him as being the Superintendent of Public Works of the State of New York but not to sue him in his official capacity. The state is not a defendant in the action and no relief is sought against the state directly or indirectly." The complaint charges defendant with trespass upon plaintiffs' properties, the illegal destruction of their rights of physical access to and from Route 17 and challenges the constitutionality of the statute under which he purported to act. (Highway Law, § 30, subd. 2.) On this appeal these averments must be accepted as true. "Though the state cannot be subjected to hostile litigation at the instance of the individual, that immunity is not possessed by its officers, who can be held responsible for illegal trespasses or torts on the rights of an individual, even though they act or assume to act under the authority and pursuant to the directions of the state." ( Sanders v. Saxton, 182 N.Y. 477, 479; Niagara Falls Power Co. v. White, 292 N.Y. 472, 478; Pauchogue Land Corp. v. State Park Comm., 243 N.Y. 15; Saratoga State Waters Corp. v. Pratt, 227 N.Y. 429, 447; Litchfield v. Bond, 186 N.Y. 66.) Judgment reversed and motion denied, with $10 costs. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur.