Opinion
March 30, 1962
Order entered March 21, 1962 denying plaintiffs' motion for a temporary injunction unanimously reversed, on the law, without costs, and the motion for a temporary injunction is granted. Leave is also granted to appeal to the Court of Appeals, and pending such appeal a stay of the temporary injunction granted by this court is allowed on condition that respondents perfect their appeal within 10 days from entry of the order herein. Settle order with certified question. Plaintiffs have established, prima facie, that the statute under which the city has acted is unconstitutional for failure to provide the giving of any notice to the owners of property condemned prior to the actual taking of possession. The necessity for notice appears all the more critical in view of the subsequent takings without formal or actual notice (17 Carmody-Wait, New York Practice, § 58, p. 216; Puerto Rico Ry. Light Power Co. v. United States, 131 F.2d 491; Porto Rico Tel. Co. v. Puerto Rico Communications Auth., 189 F.2d 39; cf. People v. Adirondack Ry. Co., 160 N.Y. 225, 238-239, affd. 176 U.S. 335).
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.