Mezey Motors, Inc. v. O'Dwyer , 197 Misc. 227 ( 1949 )

Pecora, J.

Motion to dismiss the complaint is denied. The action is not, as movant asserts, one to enjoin the board of estimate from exercising a legislative or governmental power, i.e., condemnation of property. What is sought to be restrained is the execution of a contract with New York Life Insurance Company which will in turn obligate the City of New York to condemn private property under circumstances that will inevitably lead to its acquisition by the insurance company. Plaintiff challenges the legal power of the defendants to enter into such a contract. A court of equity has the power to restrain public bodies and public officers from acting in violation of law. (Blanshard v. City of New York, 262 N. Y. 5.) A determination of the legality of defendants’ proposed action in executing the contract cannot be made on the basis of the complaint alone. Only after answer will the court be in a position to test the validity of plaintiff’s contentions.