Opinion
October 30, 1961
In an action to declare unconstitutional section 72-n Gen. Mun. of the General Municipal Law (L. 1958, ch. 924, as amd.), plaintiffs, 68 property owners, appeal: (1) from an order of the Supreme Court, Kings County, dated August 4, 1960, granting defendant's motion for judgment on the pleadings and directing the entry of judgment dismissing the complaint; and (2) from the judgment of said court, dated September 21, 1960, entered thereon, dismissing the complaint. Order modified by striking out its second decretal paragraph and by substituting therefor a paragraph declaring that section 72-n Gen. Mun. of the General Municipal Law is constitutional. Judgment modified by striking out its decretal paragraph, and by substituting therefor a paragraph adjudging that section 72-n Gen. Mun. of the General Municipal Law is constitutional. As so modified, the order and judgment are affirmed, without costs. In our opinion, condemnation is authorized, not only for slum clearance, but also to eliminate areas of "intangible" physical blight, i.e., areas which tend to create slums or which tend to impair or arrest the sound growth of the city. Such a purpose is public; redevelopment may properly be accomplished by private persons; and the area condemned may thereafter be properly used for nonresidential purposes ( People ex rel. Adamowski v. Chicago Land Clearance Comm., 14 Ill.2d 74; Wilson v. City of Long Branch, 27 N.J. 360, cert. denied 358 U.S. 873; Redevelopment Agency of City County of San Francisco v. Hayes, 122 Cal.App.2d 777, cert. denied 348 U.S. 897; Opinion of the Justices, 334 Mass. 760; Berman v. Parker, 348 U.S. 26). The power thus exercised comes within the provisions of section 1 of article XVIII of the Constitution of the State of New York even though the area is not a slum with tangible physical blight ( Diehm v. City of New York, 208 Misc. 209; Graham v. Houlihan, 147 Conn. 321, cert. denied 364 U.S. 833). In actions for declaratory judgment, the granting of a motion by defendant for judgment on the pleadings should not result in dismissal of the complaint, but in a declaration on the merits in favor of defendant ( Rockland Light Power Co. v. City of New York, 289 N.Y. 45; Strauss v. University of State of New York, 282 App. Div. 593). Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur. [ 24 Misc.2d 694.]