# Thomann v. City of Rochester

> New York Court of Appeals · May 12, 1931 · 256 N.Y. 165

URL: https://www.frixlaw.com/law-library/cases/3602234

## Case

- **Full name:** Jacob Thomann, Respondent, v. the City of Rochester, Appellant
- **Court:** New York Court of Appeals
- **Decided:** May 12, 1931
- **Citations:** 256 N.Y. 165; 176 N.E. 129; 1931 N.Y. LEXIS 1041
- **Precedential status:** Published
- **Opinion:** Dissent by Hubbs
- **Judges:** Cardozo, Hubbs
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3602234

## Opinion text

Hubbs, J.
(dissenting). The provision of the charter in question, if construed literally, prevents a party who is suffering an irreparable injury, because of acts being performed by the city in its proprietary or corporate capacity, from commencing an action in the Supreme Court and applying for an injunction to restrain such acts
“
until three months have elapsed after presentation of the claim to the common council.” The provision, if valid, requires one whose property is being destroyed to stand by and see it destroyed without the right to prevent it by injunction. The effect of the statute would be to delay the right to apply to a court of equity for protection until the application would be useless, and by the enforced delay the party injured would be deprived of the court’s protection.
*176
Jurisdiction in the Supreme Court to restrain, by injunction, the commission of irreparable injury has never been questioned. Such jurisdiction cannot be abrogated or abridged by statute, as it is conferred by the State Constitution.
“
The Supreme Court is continued with general jurisdiction in law and equity.” (Constitution, art. VI, § 1.)
If the provision of the charter which forbids the commencement of an action is unconstitutional, in so far as it forbids the commencement of an equity action to restrain a continuing trespass or a continuing nuisance, without filing a claim and then waiting three months thereafter, it would seem to follow that the provision for filing a claim is unconstitutional when attempted to be applied to such actions.
“ The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done.”
(Stuart
v.
Palmer,
74 N. Y. 183, 188 ;
People ex rel. Barnard
v.
Wemple,
117 N. Y. 77, 84 ;
Gilman
v.
Tucker,
128 N. Y. 190, 200 ;
City of Rochester
v.
West,
164 N. Y. 510 .)
The fact that the plaintiff in this case waited more than three months after service of a notice of claim before commencing the action does not determine the validity of the statute or affect the question.
The order of the Appellate Division should be affirmed.
Pound, Lehman, Kellogg and O’Brien, JJ., concur with Cardozo, Ch. J.; Crane, J., dissents; Hubbs, J., dissents in opinion.
Ordered accordingly.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3602234. Public record. Not legal advice.