January 31, 1941.
Charles A. Butts [ James E. Carroll of counsel], for the plaintiff.
John J. Bennett, Jr., Attorney-General [ Hugh Reilly and Leo G. Hosenfeld, Assistant Attorneys-General, of counsel], for the defendants.
The sole question to be determined on this motion to dismiss the complaint is whether the defendant Taconic State Park Commission possesses the power to erect a gasoline station on the Eastern State Parkway in Dutchess county. There has been no express grant of such authority, and my attention has not been directed to any statute from which the power is necessarily to be implied. It is not to be implied from the mere language of section 738 of the Conservation Law, which empowers the Commission to improve the parks "in such manner as not to lessen their natural scenic beauty;" nor from section 674, which directs park commissions in general to pay into the State treasury all receipts from park concessions and leases. An implied power must be not merely convenient, but necessary to the exercise of a power expressly conferred. ( People ex rel. City of Olean v. W.N.Y. P. Traction Co., 214 N.Y. 526.) It may be that such necessity could be shown by proof, but it does not appear upon the face of the complaint. Chapter 877 of the Laws of 1940 is merely an appropriation bill. It does not purport to confer any authority on the Commission, nor does it indicate the intention of the Legislature in previous grants of authority. ( People ex rel. Bockes v. Wemple, 115 N.Y. 302.) It seems significant that in the case of other park commissions the Legislature has expressly conferred the power to construct, maintain and lease facilities for the public, while in this case it has not done so. The omission may be due to oversight, but the plaintiff cannot be denied relief on the supposition that the Legislature intended to do something that it has not done. The motion is denied. Submit order at Special Term.