Angelonev.City of Rochester

Court of Appeals of the State of New YorkFeb 17, 1981
52 N.Y.2d 982 (N.Y. 1981)
52 N.Y.2d 982420 N.E.2d 85438 N.Y.S.2d 287

Argued January 13, 1981

Decided February 17, 1981

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, MARSHALL E. LIVINGSTON, J.

Louis N. Kash, Corporation Counsel (Susan L. Hauser of counsel), for appellant.

David J. Angelone, respondent pro se, and for Mary J. Angelone, respondent.



MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for reasons stated by Justice RICHARD J. CARDAMONE at the Appellate Division ( 72 A.D.2d 445).

We note, however, that we have no occasion to consider whether that portion of the city's ordinance which establishes an equitable claim for a tax refund on behalf of all taxpayers within the city, considered separately, would constitute an unconstitutional gift (see N Y Const, art VIII, § 1). Inasmuch as the local legislature obviously intended the ordinance to operate only as an integrated unit, we cannot say that the section which creates the equitable claims should be given effect notwithstanding the patent invalidity of the other sections of the ordinance (see McKinney's Cons Laws of NY, Book 1, Statutes, § 150).

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

Order affirmed, with costs, in a memorandum.