RED APPLE REST v. McMORRAN, 12 N.Y.2d 203 (1963)

237 N.Y.S.2d 707, 188 N.E.2d 137

RED APPLE REST, INC., et al., Appellants, v. J. BURCH McMORRAN, Superintendent of Public Works of the State of New York, Respondent.

Court of Appeals of the State of New York.Argued January 8, 1963
Decided January 23, 1963

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.

Page 204

John R. Davison and Rose M. Fredrickson for appellants.

Louis J. Lefkowitz, Attorney-General (Julius L. Sackman an Paxton Blair of counsel), for respondent.

Page 205

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

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Per Curiam.

In this case, it is argued by appellants, by permission and upon an agreed statement of facts, that the State, acting through the Superintendent of Public Works, was not authorized to erect guardrails in front of a portion of appellants’ premises which abut upon a State highway, known as Route 17, in the vicinity of Southfields, Orange County, New York. We think, to the contrary, that under the Highway Law, and under the police power, and to effectuate a reasonably safe channelling of traffic, the State had a right to erect upon the property appropriated the guardrails in question. The guardrails, as erected, did not create a nonaccess highway or bar access to the premises in question but left ample room for ingress and egress.

While the issue raised herein might have been reached by a proceeding under article 78 of the Civil Practice Act, the Appellate Division nevertheless had jurisdiction to entertain the issue raised in such a submission.

The judgment should be affirmed, without costs.

Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, FOSTER and SCILEPPI concur.

Judgment affirmed.