Brown v. McMorran , 23 A.D.2d 661 ( 1965 )

Beldock, P. J., Ughetta, Christ, JJ., concur; and Hopkins, J., concurs, with the following additional memorandum, in which Christ, J., concurs: Recent comment has suggested that the courts ought to review more freely the exercise of administrative discretion which rises to the dignity of “ legislative action ” (Fox, Reviewability of Quasi-Legislative Acts of Public Officials in New York under Article 78 of the CPLR, 39 St. John’s L. Rev. 49, 53; Berger, Administrative Arbitrariness and Judicial Review, 65 Col. L. Rev. 55, 72-73 ; 4 Davis, Administrative Law, § 28.21, pp. 112-113; cf. Matter of Mastrangelo v. State Council of Parks, 42 Misc 2d 650, affd. 21 A D 2d 879). In this case the Legislature has marked out in the statute the general route of the interstate highway (Highway Law, § 340-a, Interstate Route 502); and pursuant to the statutory power confided to him (Highway Law, § 3404», suibds. 1, 4, 6; § 85), the Superintendent of Public Works has selected a specific route which follows the general route designated by the Legislature. Only part of the specific route selected by the Superintendent is challenged as an arbitrary exercise of discretion. Under such a narrow focus, even though the Superintendent may have wavered in his decision and was finally persuaded by the Federal Highway Administrator to adopt a part of the route not originally proposed, I think that the record here does not show any abdication of authority by the Superintendent, but does show, based upon the facts before him, a reasonable exercise of discretion not raising a triable issue (People v. Adirondack Ry. Co., 160 N. Y. 225, 237-238; Matter of City of New York [Ely Ave.], 217 N. Y. 45, 52-54; Rindge Co. v. Los Angeles, 262 U. S. 700; People ex rel. Consolidated Water Co. v. Maltbie, 275 N. Y. 357, 369-370). Brennan, J., dissents and votes to affirm the order on the opinions of the learned Justice at Special Term (39 Misc 2d 716; 42 Misc 2d 211).