217 A.D. 746 | N.Y. App. Div. | 1926
Dissenting Opinion
(dissenting). I cannot concur in the decision about to be handed down in this case. The decision proposed should, if possible, be avoided. It is unnecessary to recite the history of the litigation arising out of an attempt to annex certain territory to the village of Cornwall. I think it is sufficient to say that the relator instituted this proceeding to review the annexation proceedings. He also brought an action in equity to test the validity of an act of the Legislature passed for the purpose of validating those proceedings. In this action in equity the plaintiff also sought to review the annexation proceedings. With these two proceedings pending, the trustees of the village of Cornwall decided to abandon their opposition to the certiorari proceeding and also to the equity action, and passed a resolution to that effect December 31, 1923. This was the first move in that direction. The following is a copy of the resolution:
“It is hereby resolved, by the Board of Trustees of the Village of Cornwall, that all further proceeding towards the annexation of the territory of the Town of Cornwall and specified in Chapter 20 of the Laws of 1923 and in the petition for annexation, voted upon at the Village election of March 21st, 1922, be discontinued, and it is hereby further
“ Resolved, that the Attorney for the Village of Cornwall, be instructed forthwith to discontinue all further opposition on behalf of said Village to the certiorari proceeding now pending to determine the validity of said annexation election and to the injunction suit now pending for the same purpose, and it is further
“ Resolved, that the said'Board of Trustees consents to the entry of judgment in said injunction proceeding in favor of the plaintiff and in said certiorari proceeding to an entry of an order in favor of said George S. Abell and that the Village Attorney, be instructed to agree to said judgment and order provided that said George S. Abell consents to said termination of that action and proceeding without any further costs against the Village of Cornwall.”
The proposition of the village contained in this resolution was accepted and judg
Lead Opinion
Order denying motion to vacate order reviving certiorari proceeding affirmed, with ten dollars costs and disbursements. No opinion. Kelly, P. J., Rich, Manning and Lazansky, JJ., concur; Jaycox, J., dissents, and reads for reversal.