In re the Proposed Inc. of Village of Lynbrook

127 N.Y.S. 82 | N.Y. App. Div. | 1911

Burr, J.:

The general statutory provisions relating to the incorporation of villages are contained in the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64). They are quite simple, but laxity in the observance thereof has given rise to this controversy.

It would appear that in the early part of 1910 certain freeholders ■ of the town of Hempstead desired to incorporate a village within its territory, to be known as the village of Lynbrook. No claim is here made that, the proceedings were not regularly Conducted down to the time when it became the duty óf the town .clerk to give notice of an election, to be held by the electors resident •in the territory which it was proposed to incorporate, to determine, favorably or otherwise, the question of such incorporation. Respecting this the statute provides that: “ Within five days after the right -to an election is complete the town clerk with whom the proposition and other papers are filed shall give notice of an election to be held in such territory at a specified time and place. The notice shall be signed by the town clerk and posted in ten conspicuous places in such territory, and also published at least twice in each newspaper published therein, and it shall fix a time for such election, not less than fifteen nor more than twenty-five days from the date of the posting thereof, Such' election shall be held at a convenient place in such territory between the hours of one o’clock in the afternoon and eight o’clock in the evening, but shall not be held upon a day of a town meeting or of a general election in a town in which any part of the proposed village is situated.” (Village Law, § 10," as amd. by Laws of .1910, chap. 416, in effect June 7,1910.) (The first notice prepared by the town clerk read as follows:

“ Notice is hereby given in pursuance of Section 10, Article 1, Chapter 414 of, the Laws of 1897 and the acts amendatory thereto, that on Saturday, July 16th, 1910 between the hours of one o’clock in the afternoon and sunset, an election will be held.in Lyceum Hall at Lynbrook, within the territory proposed to be incorporated, in the Town of Hempstead, Nassau County and State of New York, for the purpose of voting for and against the proposed Incorporation of the Village of Lynbrook. •

“ Dated, Hempstead, N. Y., July 1st, 1910.

“ H. LUTHER WEEKS,

“ Town Clerk of the Town of Hempstead”

This notice is criticised for insufficiency,, first, because it declares that it is given in pursuance of section-10, article 1, chapter 414 of the Laws of 189.7. This law had been expressly repealed in February, 1909. It may be, however, that if the notice had complied with the provisions of the Village Law, then in force, an erroneous description of such .statute would not have been fatal.

Further criticism is made upon the sufficiency of the notice, for the reason that it specified the time when such election should be held as Saturday, July 16, 1910, between the hours of one o’clock in the afternoon and sunset. The law required that the election should be held between the hours of one o’clock in the afternoon and eight o’clock in the evening. (Laws of 1910, chap. 416.) This clearly means that the polls should be open and remain open- during that entire period. It is in evidence that the sun set on the day in question at twenty-nine minutes after seven in the afternoon. The notice vyas not, therefore, such a notice as the statute required. ¡Respondent contends that the statute does not require that the notice should specify the hours during which the polls should remain open. It does require that the tizne, as well as the place, for votizig shall be specified. If the. notice had siznply stated that the election was to be held on the sixteenth of July, it may be .that would have been a sufficient specification, and that the electoz-s would have been required to take notice of the provisions of the statute as to the designated hours. But in this notice the hours were as much part of the tizne specified as the" day. In fact, they limited the day to that part thereizi stated. Having attempted to “ specify ” more completely than the statute possibly required, it was the duty of the town clerk at his peril to specify accui'ately.' If such a notice could be held sufficient, then one that specified the time for the election as being any one hour or part of. an hour between one in the afternoon and eight in the evening would have been sufficient. ' The town clerk seems to have discovered his error and attempted to rectify it, for another notice was-prepared, correctly specifying the hours within which the election would be held.

Tfie evidence as to the posting of this notice is very unsatisfactory. Although the Village Law (§ 331) prescribes a very siznple method of furnishing presumptive evidence thereof, no affidavit such as is therein referred to is produced. The town clerk, instead of performing the duty devolving upon lzizn of posting these notices, seems to have left them upon the countez's of vai'ious tradesmen, expecting them to post the same. After testifying that he had left copies of the notice on cigar stands in two stores, and on a table in the center of another store, he was asked this question : “ Q. Now, Mr. Weeks, is there any place where you was where you posted these notices, that you actually put them up yourself, orQdid anything more than to leave them on a table, a stand, or something of that kind ? • A. Yes, I went in a butcher shop, and hung one on a meat hook. I can’t think of another place where I actually hung one up.” No. testimony is introduced showing that any one, by his direction or • otherwise,' actually posted up the notices' which he distributed .in the manner testified to by him.

But if the amended notices had been actually posted, they were not posted within the time required. Upon the most favorable construction of the evidence they were not printed and ready for posting until the second of July, and the election' was .to be held on the sixteenth. Under the statutory rule for computation of time this was only fourteen days before the day fixed' for the election. (Gen. Constr. Law [Consol. Laws, chap. 22; Laws of 1909, chap. 27], § 20.) As we have before pointed out, the notice must be at least fifteen days prior thereto.

Other objections were raised to the sufficiency of the proceed- ■ ings, which it is not necessary for us to consider. Because of the irregularities above mentioned the election "was invalid and a new ■ election must be held.

The decision of the County Court of Nassau county must be reversed and the election set aside:

■' Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

■ Decision of the' County Court of Nassau 'county reversed, and the election set aside.