(dissenting). There should be an affirmance here for the reasons stated by the learned Justice at Special Term and for the following additional reasons:
The subsequent statutes (Highway Law, § 340-a, 340-b) confer upon the Superintendent of Public Works the plenary power to terminate the exemption created by the 1927 statute (L. 1927, ch. 659), and thereafter such exemption was expressly terminated when respondent duly exercised this power.
Prior to 1944 the State itself did not acquire the rights of way for its highways. Its policy was to vest in the counties such power and duty (Highway Law, § 30, [L. 1909, ch. 30]). Nor was it then the State’s policy to build highways in cities. In *5581944, however, the then Governor in his message to the Legislature recommended abandonment of this policy. He found that the State highway development was being rendered abortive by the unwillingness or inability of some counties to acquire the necessary rights of way. Eespondent points out, and appellant does not question, that the Governor stated:
“ Acquisition of Eights-of-Way * * *
“ the State’s program of highway development was defeated by the unwillingness or inability of some counties to acquire the necessary rights-of-way.
‘ ‘ This question has been given careful study in recent months. I now recommend that the State be authorized to acquire and pay for necessary rights-of-way in order that the post-war program of highway construction may be carried out. In this connection I also recommend that the State should pay for the building of those parts of its arterial highways which are to pass through cities ”. (Public Papers of Thomas E. Dewey, 1944, p. 16.)
The Legislature promptly adopted the Governor’s recommendation and effected a fundamental change in the State’s policy. In order to stimulate postwar employment and industrial recovery and in order to integrate all arterial highways into a State highway system (cf. Highway Law, § 349-b), the Legislature adopted chapters 543 and 544 of the Laws of 1944 and chapter 619 of the Laws of 1945. Chapter 543, which was amended by chapter 619, added article XII-B to the Highway Law (§§ 349-b to 349-f), relating to highways through cities. Chapter 544 repealed former sections 30 to 37 of the Highway Law, and. added a new section 30 relating to highways outside cities.
In order to attain the stated objectives, the Superintendent of Public Works was empowered under the 1944-1945 statutes to lay out on behalf of the State all new highways through cities and counties, and to acquire or cause to be acquired all necessary property therefor (Highway Law, § 349-c, subds. 2.6, 3.3).
In order to achieve the further objective of integrating the State highways with the national interstate highway system and thus promote the national defense and make the State eligible to receive Federal aid, the Legislature in 1955 and 1956 enacted additional statutes (L. 1955, ch. 748 [amdg. Highway Law, § 340]; L. 1956, ch. 357 [adding Highway Law, § 340-a]; L. 1956, ch. 651 [adding Highway Law, § 340-b]; see 1956 Legis. Annual, pp. 186-187). These statutes follow *559substantially the pattern of the 1944-1945 statutes. In said sections 340 and 340-a of the Highway Law the Legislature set forth and generally described certain State interstate routes. One of these is “Interstate Route Connection 520”, which is generally described as running from ‘ ‘ interstate route 502 in the vicinity of Elmsford, generally easterly passing through or northerly of White Plains to a connection with interstate route 501 in the vicinity of Rye.” (Highway Law, § 340-a.)
In said section 340-b of the Highway Law with respect to all the interstate highways described in section 340-a, the Legislature empowered the Superintendent of Public Works: (a) to determine the design and type of construction “ subject to the provisions of federal aid therefor ” (subd. 1), (b) to combine, terminate or relocate intersecting highways (subd. 2), (c) to acquire “ any and all property which” he “ deems necessary for the construction, reconstruction and maintenance of interstate highways and bridges” (subds. 3, 5), and (d) to utilize the funds made available by the Federal Government under the Federal Aid Highway Act (U. S. Code, tit. 23) for the construction of the interstate highways designated in section 340-a of the Highway Law and for the “ acquisition of rights of way necessary for such interstate highways ” (subd. 4).
Exercising the statutory power thus vested in him by sections 340-a and 340-b of the Highway Law, respondent determined that it was necessary to acquire a small strip of appellant’s land in the city of White Plains for the purpose of building one of the designated interstate highways. Appellant has not challenged the propriety or reasonableness of respondent’s judgment as to such necessity. Its only contention is that the exemption of its land created by the 1927 statute now estops respondent from acquiring its land for such interstate highway, despite the powers granted to him by the later statutes (Highway Law, §§ 340-a, 340-b [L. 1956, chs. 357, 651]). In our opinion that contention is unsound and must be rejected.
The prime, pervading purpose of the 1956 statutes mentioned is: (a) to permit the State to build and integrate arterial highways within its borders and to connect such highways with those which are part of the national interstate highway system, (b) to have the State do so through the medium of its Superintendent of Public Works without regard to the boundaries of cities and counties, (c) to stimulate the public economy and to promote the national defense, and last, but not least, (d) to obtain the substantial financial aid given by the Federal Government provided the State highways are built in accordance *560with the Federal Government’s requirements as to location, access, width and construction (cf. 1956 Legis. Annual, pp. 186-187).
To effectuate this prime purpose, section 340-b confers upon the superintendent the authority to exercise a power which is necessarily plenary and discretionary. In the nature of things the Legislature could not determine in advance the precise location of extensive arterial highways and how best to integrate them, especially in view of the constantly shifting requirements imposed by the Federal Government as a prerequisite to its aid. The Legislature could not possibly delineate every bend in the road. Under the circumstances it adopted the only practicable measure, i.e., it expressly empowered the superintendent, acting on behalf of the State, to acquire such property as he deems necessary for the interstate highways prescribed by it (Highway Law, § 340-b, subds. 3, 5). In this, respect the Legislature simply followed its own prior pattern (Highway Law, § 349-c, subds. 2.5, 2.6, 3.3 [as added by L. 1944, ch. 543 and amd. by L. 1945, ch. 619).
To emphasize that respondent, with respect to the building and the precise location of the prescribed highways, has carte blanche and is authorized to ignore any prior inconsistent statute, the Legislature in both its 1944 and 1956 amendments to the Highway Law has specifically provided that the superintendent shall exercise his newly granted powers “ Notwithstanding any inconsistent provisions of this chapter or any other law, general or special ” (Highway Law, § 340-b, subd. 3; § 349-d).
And to emphasize the unlimited scope of the property which the superintendent is empowered to acquire, the Legislature in its 1956 amendment expressly defined property “ to include lands, waters, rights in lands or waters, structures, franchises and interests in land * * * . and all interests in such property less than full title, such as easements * * * rights-of-way, uses, leases, licenses and all other incorporeal heredita-ments- and every estate, interest or right legal or equitable ” (Highway Law, § 340-b, subd. 3 [L. 1956, ch. 651]).
It is obvious that unless respondent is freed from any prior statutory restrictions (just as the Legislature itself is when acting), the entire State highway building and integration program will be imperiled. It was undoubtedly such apprehension which moved the Legislature to unconditionally authorize the superintendent to acquire such property as he may deem necessary for the new interstate highways and connections prescribed in section 340-a of the Highway Law. Of course respondent, in exercising this power, acted as the Legislature’s agent by *561determining for it what property was necessary. He is authorized, after making- such determination, to proceed with the acquisition of the needed land for the highways prescribed. No one will deny that, if the Legislature itself had expressly determined that the strip of land in suit was necessary and should be acquired for the purpose of building an integrated interstate highway, the exemption from condemnation created by the earlier 1927 statute would be ipso facto terminated. The situation is no different because the Legislature acted, as it did here, through respondent as its alter ego and authorized him to make such determination for it. He is simply the medium through whom it has elected to express its intent retroactively. Thus we have, in effect, an express legislative termination of the exemption, or an express legislative repeal of the statute creating it.
It may also be noted that there is no constitutional inhibition against the Legislature’s delegation of power to the superintendent to determine what property is necessary for the building of the highways (Matter of City of Rochester v. Holden, 224 N. Y. 386, 391; Matter of Fowler, 53 N. Y. 60, 62; St. Louis Merchants’ Bridge Term. Ry. Co. v. United States, 188 F. 191; 15 Cyc. 630-632).
In any event, the exemption must be deemed to have been terminated by necessary implication under the well-established rule that if two statutes in pari materia are incongruous and irreconcilable with, or repugnant to, each other the later enactment must control (Matter of Commissioners of Cent. Park, 50 N. Y. 493, 496; People ex rel. Strough v. Board of County Canvassers of Jefferson County, 77 Hun 372, affd. 143 N. Y. 84; Cimo v. State of New York, 306 N. Y. 143, 148-149; People ex rel. Bronx Parkway Comm. v. Common Council & Bd. of Estimate of City of Yonkers, 229 N. Y. 1, 8; Matter of Morris v. Neider, 259 App. Div. 49). Here, bearing in mind the urgent public purposes sought to be achieved by the later statute, it is clear that the earlier 1927 statute creating the exemption is incongruous and irreconcilable with, and repugnant to, the later statute. Consequently, the 1927 statute must yield. Where the legislative intent to terminate a license or right, or to abrogate a statute, is clear, such intent will be effectuated by the courts, even though the result may be a repeal by implication (People ex rel. Bronx Parkway Comm. v. Common Council & Bd. of Estimate of City of Yonkers, supra; Gerry v. Volger, 252 App. Div. 217; Commonwealth v. Broad St. R. T. Co., 219 Pa. 11; 1 Sutherland on Statutory Construction [3d ed.], § 2006). In other words, the termination or repeal nomination of the prior exemp*562tion or statute is not indispensable. It is sufficient if tie intent to effect such termination be implicit in tie subsequent statute, as it is here.
This result will facilitate a most essential public purpose. It will promote tie common defense and stimulate industrial recovery without thwarting or impairing in the slightest degree the noble charitable cause being served by the appellant, for it is admitted that the small parcel of land here involved is not needed for its proper operation.
The order and judgment should be affirmed.
Ughetta, J., concurs with Murphy, J.; Beldock, Acting P. J., concurs in separate opinion; HahliNAN, J., dissents and votes to affirm without modification, in opinion in which KleiNfelu, J., concurs.Order modified (1) by striking from the first paragraph thereof the words “ denied in all respects ” and by substituting therefor the word “ granted” and (2) by striking from said order everything following the word “ denied ” in the second ordering paragraph. As so modified, order insofar as appealed from affirmed, without costs, and judgment vacated.