Ciminera v. Sahm

Per Curiam. This proceeding was brought under article 78 of the Civil Practice Act to compel the town officials of the township of North Hempstead to enforce an “ Ordinance Relating to Sand Bank and Pit, Topsoil Removal and Other Excavations ”. The petition alleges the validity of the ordinance, the duty of the town officials to enforce the ordinance, and recites specific instances of their refusal, neglect and failure to enforce it. The petition concludes with a prayer for an order directing the town officials to enforce the provisions of the ordinance, and to take steps to collect the license fees due since the enactment of the ordinance. Appellants seek the dismissal of the petition. The sole question before the court, then, on this appeal, is whether the petition sets forth a good cause of action. We conclude that, on its face, the petition cannot be said to be insufficient as a matter of law (see 22 Carmody-Wait on New York Practice, § 119, and cases cited therein). If, as claimed on the argument, the controversy has become academic, that contention can be dealt with at Special Term. Accordingly, the order of the Appellate Division should be affirmed, with costs.