Red Apple Rest v. McMorran

12 N.Y.2d 203 (1963)

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.

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

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

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

*206Per 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.

Judgment affirmed.