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Stahl Soap Corporation v. City of New York
Appeal iron an order granting respondent’s motion to strike out affirmative defenses of estoppel by reason of loches and waiver pleaded in the answer of the appellants City of New York, Board of Estimate and Corporation Counsel and to strike out the affirmative defenses of estoppel by reason of loches, waiver and bad faith in the answer of the appellant Liebmann Breweries, Inc. Respondent, a taxpayer, sued to nullify the action of the appellant city and its Board of Estimate in closing a portion of Stanwix Street, in Brooklyn, to enjoin the alienation of said portion of Stanwix Street to appellant Liebmann Breweries, Inc., or if it has been already sold, to set such sale aside, and for other relief.
Order affirmed, with $10 costs and disbursements. In order to prevail in this action, respondent will be required to prove, as it alleges in the complaint, that the closing of the portion of Stanwix Street complained of was for a purpose not authorized lay law, and that there was a total lack of power in the appellant city and the named officials to close it for the purpose for which it was closed.
If respondent shall establish that claim on the trial, the facts pleaded in the first and second affirmative defenses in the answers will be insufficient, as a matter of law, to defeat respondent’s demand for relief. Where, under the law, there is an entire lack of power to do the act in question, it cannot be made good by estoppel (Mutual Life Ins. Co. v. Corey, 135 N. Y. 326, 334; see Marcus v. Village of MamaronecTc, 283 N. Y. 325, 331-332). The third defense pleaded by appellant Liebmann is also insufficient.
If respondent is able to establish the cause of action pleaded in the complaint, it will not be barred from relief because it may have been moved by some private grievance to bring the action (Gage v. City of New York, 110 App. Div. 403; Molloy v. City of New Rochelle, 198 N. Y. 402; Del Balso Constr. Corp. v. Gillespie, 225 App. Div. 42, affd. 250 N. Y. 584). Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur. [19 Misc 2d 142.]