The main issues here are whether the Power Authority of the State of New York by its appropriation of respondents’ property in fee rather than appropriating an easement to remove sand and gravel therefrom, constituted an appropriation that was necessary for its pur*175poses and for a public use, and whether the court may review its determination.
The Authority is empowered by statute to acquire any property that it finds necessary or convenient to carry out its purposes and “ the authority may find and determine that such property is required for a public use”. (Public Authorities Law, § 1007; Highway Law, § 30.) There is no question that the Authority, in its construction of the Blenheim-Grilboa Pumped Storage Power Project was engaged in a construction project dedicated to a public use, and that any materials taken from the appropriated property would be used in the construction project, and thus their use would be for a public purpose. Use of the property appropriated as a source of sand and gravel for purposes of constructing a public power project is a public use.
The determination of whether lands are needed for a stated public use is a legislative function, which may validly be delegated to the discretion of an Authority, and the quantum of the property and the quality of the estate appropriated may be found and determined by the Authority. (Cuglar v. Power Auth. of State of N. Y., 4 Misc 2d 879, affd. 4 A D 2d 801, affd. 3 N Y 2d 1006; Kaskel v. Impellitteri, 306 N. Y. 73; County of Broome v. Trustees of First M. E. Church & Soc. of Choconut Creek, 37 A D 2d 1036; Harwell v. United States, 316 F. 2d 791.)
In Cuglar v. Power Auth. of State of N. Y. (supra, p. 896), the court stated: " Moreover, insofar as these complaints allege that the premises above the 246 elevation are ‘ useless ’ and ' unnecessary ’, for navigation, commerce or hydroelectric purposes, it must be held that they are insufficient since the necessity for an appropriation of lands for public use is a legislative function, and the instrumentality in which it reposes such powers is the sole judge of the necessity, in lieu of any provision to the contrary.”
" The question of whether the fee, or an easement in the property should be taken is a legislative and not a judicial question.” (Matter of City of New York [Nostrand Ave.], 163 App. Div. 10, 12; cf. Eldridge v. City of Binghamton, 120 N. Y. 309.)
In Harwell v. United States (supra), the appropriation by the Secretary of the Army of property acquired by condemnation for the construction of a dam in Oklahoma for flood control and related purposes was attacked as not acquired for a public use. The property involved was not contiguous or adjacent to the dam site, but did contain rock and stone deposits suitable for use as a constituent element of the dam construction. The court held that the condemnation of the land for such purpose was un appropriate means of effecting a public end, and stated (p. 793):
*176“ In a condemnation proceeding, the court may determine whether the nature of the proposed use is public or private. But in the absence of bad faith, if the use is a public one, the necessity for the desired property or the expediency of appropriating it thereto is not open to judicial determination. It is a matter for the legislative branch of the government, and its determination may be delegated.”
There are no allegations of fact in the complaint which would permit a finding that the Authority acted arbitrarily, capriciously or in bad faith. Respondents ’ complaint does not state a cause of action, and the motions to dismiss the complaint made by the appellants should have been granted.
Heblihy, P. J., Cooke and Simons, JJ., concur in Per Curiam opinion; Staley, Jb., and Sweeney, JJ., dissent and vote to grant motions to dismiss the complaint made by appellants in an opinion by Staley, Jb., J.
Order modified, on the law and the facts, by granting the motions to dismiss the complaint as against appellants Perini Corporation and Gordon H. Ball, Inc., and, as so modified, affirmed, without costs.