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795 FIFTH AVE. CORP. v. CITY OF NEW YORK

15 N.Y.2d 221 (1965)

795 Fifth Avenue Corporation et al., Appellants, v. City of New York et al., Respondents.

Court of Appeals of the State of New York.

Decided March 11, 1965.

Attorney(s) appearing for the Case

William Rand for appellants.

Leo A. Larkin, Corporation Counsel (John F. Kelly, Milton Weinberg and Stephen M. Clayton of counsel), for respondents.

Samuel D. Smoleff for Citizens Union of the City of New York, Inc., amicus curiæ.

Edward R. Finch, Edward R. Finch, Jr., and Byron Golden for the Municipal Art Society of New York, amicus curiæ.

Sheldon Oliensis for Park Association of New York City, Inc., amicus curiæ.

David Sive for the Sierra Club, amicus curiæ.

David G. Gill and Martin Mushkin for Appalachian Mountain Club (New York Chapter) and another, amici curiæ.

Chief Judge DESMOND and Judges DYE, BURKE and SCILEPPI concur with Judge BERGAN; Judges FULD and VAN VOORHIS dissent and vote to reverse the order appealed from and to direct judgment for the plaintiffs on the ground that the proposed restaurant — having in mind its location and purpose — would neither be "ancillary" to Central Park nor serve a proper park purpose and that, accordingly, the defendants lack the power to do the acts complained of.

BERGAN, J.

The problem presented by this case is whether the proposal to construct the Hartford Pavilion, a cafe and restaurant in the southeast corner of Central Park, is legally within the power of the City of New York.

The proposal is based on an offer by the Huntington Hartford Family Fund, Inc., to donate to the city $862,500 and any additional sum that may be necessary to construct the pavilion...

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