Board of Education of Union Free School District No. 2 of Towns of Ossining v. Pace College

Benjamin, J. (concurring in the result).

I agree that on the facts in this-case the judgment dismissing plaintiff’s petition to condemn the subject property should be reversed and plaintiff’s motion to dismiss the defense of prior public use should be granted.

However, I am loath to adopt the absolutist stand (taken by my colleagues) that in no case do we have power to weigh the public benefit of the proposed use against the present use of the property, merely because the condemnee lacks the power of eminent domain. It is undisputed that we can and must do so if both condemnor and condemnee have the power of eminent domain. And it is clear that we can interfere with and prevent any excessive taking of land upon a showing of bad faith or palpable unreasonableness (see 1 Nichols, Eminent Domain, § 4.11 [2], p. 554; Guglar v. Power Auth., 4 Misc 2d 879, 895-898 , affd. 4 A D 2d 801, affd. 3 N Y 2d 1006).

There appears to be no logical reason, since we have the legal right, on a proper showing, to prevent a quantitatively excessive taking, why we may not likewise act with respect to a qualitatively excessive taking. It appears inconceivable to me that in the event a local authority, acting however irresponsibly, were to decide to take a great voluntary hospital for a public purpose such as a local school, park, playground or parking lot, that we would be powerless to prevent such a wanton, excessive use of authority. While in the instant case I agree that upon the facts the claim of Pace College is subordinate to that of the local school board, I would be unwilling to arrive at the same result were this taking to be of substantial portions of college campuses -actually in operation, so as to interfere with such private colleges in our State as Vassar, Columbia, New York University, Cornell, or any of the other institutions of higher learning which are so essential to the public needs of our State, and indeed of the Nation.

Whim and caprice of the local authorities of the City of Rochester, for instance, should hardly be effective to decide that Rochester University should be turned into a public park; nor should Ithaca be allowed to decide that it would prefer a complex *93 of public schools where Cornell University now stands. While the process of reductio ad absurdum may be answered by the argument that such eventualities are too fantastic to be considered realistically, the principle involved is whether, in the event irresponsible local authority should act so adversely to the public interest in an abuse of power as to legislate such an excessive taking qualitatively, we would be impotent to deal effectively with such an abuse.

It does not appear to be essential to the result arrived at by my colleagues, in which I concur in this case, that we engage in such total renunciation of judicial authority. I concur, therefore, merely in the result.

Hill, Rabin and Hopkins, JJ., concur with Christ, Acting P. J.; Benjamin, J., concurs in result, with separate opinion.

Judgment of the Supreme Court, Westchester County, entered June 27, 1966, reversed, with $10 costs and disbursements payable by respondent Pace College, and plaintiff’s motion to dismiss the defense granted.