Opinion
January 12, 1954.
Present — Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Murphy, JJ.
In a proceeding pursuant to article 78 of the Civil Practice Act, the petitioners and interveners-petitioners appeal from an order insofar as it dismissed the petition on the merits. Order insofar as appealed from unanimously affirmed, with one bill of $50 costs and disbursements. Appellants seek to have annulled the action of the respondents in laying out a route for the Southern Westchester Connection of the State thruway system, and to annul the taking of land therefor, and appellants pray for a mandate directing the respondents to select some other route. The petition, affidavits and papers presented by appellants fail to present any facts which would warrant the court in issuing a mandatory order directed to the respondents. (Cf. People ex rel. Schau v. McWilliams, 185 N.Y. 92, 100; Kaskel v. Impellitteri, 306 N.Y. 73, and Matter of Public Service Comm., 217 N.Y. 61, 66.) No illegal acts of the respondents are set forth, nor is there anything to warrant a finding of corrupt motive or bad faith. What they are stated to have done was within the scope of the governmental power and limit of discretion granted to them by statute. (Public Authorities Law, art. 2, tit. 9.) The respondents are not shown to have failed to perform a duty specifically enjoined upon them by law. No issue requiring a hearing was presented. The petition was, therefore, properly dismissed. (Civ. Prac. Act, §§ 1295, 1296.)