Knapp v. Fasbender, 281 A.D. 893

Knapp v. Fasbender

281 A.D. 893 | N.Y. App. Div. | 1953

Action brought by taxpayers for a declaratory judgment and for an injunction. The summons is dated May 1, 1951. The answer was verified May 22, 1951. A resolution, adopted at a special meeting of the town board of the town of Huntington held on April 13, 1951, provided for a special election of the residents and taxpayers of the town to be held on May 15, 1951, for the purpose of voting by ballot on a proposition set forth in said resolution. The resolution recited that petitions had been filed with the board signed by approximately 1,500 residents and taxpayers of the town requesting the board to call such election. The *894proposition to be voted on was whether the action of the supervisor, justices of the peace and town clerk of the town in acquiring for the town in the name of the board of trustees certain lands, and in improving and maintaining the same, and in making a contract for the dredging of the town’s harbors and bays and using the revenues therefrom for the foregoing purposes should be approved? The action was to declare the resolution invalid and to enjoin the defendants, permanently and pendente lite, from taking any action or proceeding under its authority. The election was held May 15, 1951. At the election two types of ballots, each of a distinctive color, were used. Those of one color were distributed only to electors who were taxpayers, and those of the other color were distributed only to electors who were not taxpayers. In the tabulation of both sets of ballots, the proposition was approved. After trial the Special Term dismissed the complaint. The court’s decision-opinion contained a direction “ Submit judgment.” The clerk entered judgment December 5, 1951. A judgment, signed on January 25, 1952, by the Justice who tried the case, was entered on January 28, 1952. Plaintiffs appeal from both judgments. Judgment entered January 28, 1952, unanimously affirmed, with costs. No opinion. Appeal from judgment entered December 5, 1951, dismissed, without costs. The decision-opinion did not direct the entry of judgment. (Cf. Rules Civ. Prae., rule 198.) Furthermore, such judgment was superseded by the judgment entered January 28, 1952. Present — Carswell, Acting P. J., Wenzel, MacCrate, Schmidt and Beldoek, JJ. [See 282 App. Div. 714.]