54 N.Y.S. 218 | N.Y. App. Div. | 1898
According to the allegations of the petition, the relator is the owner of a dwelling house, in. which he resides, located upon a lot belonging to him on Dayton street in the village of Sea Cliff one block to the east of that portion pf the street which the board of trustees of the village have undertaken to close by the proceedings brought up for review by this- writ. Those proceedings were instituted under sections .145, 146 and 147 of the Village Law (Laws of 1897, chap. 414). Section 145 provides that five resident freeholders may present to. the board of trustees a petition for laying out, altering, widening, narrowing or discontinuing, á street in a village,, and prescribes wliat facts must be stated in. such petition; Section 146 ■ directs that, upon the presentation thereof, the board shall immediately give notice that it will meet at a specified time and place, not less than ten nor more than twenty days from the date of such notice,. to consider the petition. In the case of the proposed discontinuance of a street the notice is required to be served upon - each owner of, land adjoining the street proposed to be discontinued, “ and also upon the ■ owner of land otherwise affected by the proposed discontiriuance.” Section 147 requires the board to meet, at the time • and place specified in the notice, .to consider the petition and - also any -objections thereto and further provides as follows,:- “The board may adjourn the • hearing and must determine the matter within twenty days from the date fixed for such hearing. If the board determine to grant the petition, an- order must be. entered in its minutes containing a description of the land, if any, to be taken.”'
In the present case the minutes of' the board of trustees of the village of Sea. Cliff,' which are set-out in the return to-the writ of certiorari, show that a petition of five- resident freeholders for the discontinuance of that part. of Dayton street west of Locust place was received at a meeting of .the board held on October 13, 1897. The minutes also show-that the board, then ordered the publication and posting of a -notice to the effect that the board .would meet in its room on October 27, 1897, at nine o’clock in the evening-to. consider said petition. The minutes of a meeting held on October
The next extract from the minutes which we find in the return relates to a meeting held on November 20, 1897. From this it appears that on that date the board ordered to be placed on the minutes the following entry relative to the closing of Dayton street, west of Locust place:
“ The following determination was filed with the Village Clerk, Nov. 16, ’97:
“ In the matter of the application to close that portion of Dayton St., lying west of Locust Place.
“ The hearing in this matter having been duly held at the Village Board Room, pursuant to the notice issued therein, and of the statute in such case made and provided, on the 27th day of Oct. 1897, and after due consideration and deliberation, we determine that the said petition shall be granted, and do hereby grant the same, and order that that portion of Dayton St., lying west of Locust Place, be discontinued.
“Dated at Sea Cliff, L. I., November 15th, ’97.
“(Signed) D. A. SHAW, President.
“ GEO. A. BROHWER, x
“ C. SACKETT CHELLBORG, Trustees.
“CHANCY COOMBS, J
“ Filed Nov. 16, 1897.
“(Signed) C. Sackett Chellboro, Acting Clerk.”
No further or other order or determination in the matter of the proposed discontinuance of the portion of Dayton street west of
We agree with the learned counsel for the relator that this was not such a determination as the statute requires, and that it is to be regarded as in effect, -no determination at all. The determination purports to have been made on November 15, 1897. No meeting of the board of trustees, however, was appointed to be held or appears to have been held on that day. The clerk of each village is made by statute the clerk of the board of trustees and it is his-duty to keep a record of their proceedings. (Laws of 1897, chap. 414, § 82.) If there was a meeting at-which the alleged determina- ' tion was made, the presumption is that it would have been recorded and the record would now be before us. But no valid determination could be made except" at a meeting of the board as such. The law takes no account of what the trustees may. individually, agree upon outside. As was said in an Ohio case, where a prior .agreement of the members of a school board to award a certain contract was pronounced void: “ The board is constituted, by statute, a body politic and corporate" in law, and as such is invested with certain corporate powers, and charged with the performance of - certain public duties. These powers are to be exercised, and these duties discharged, in the mode prescribed by law. The members composing the board have no power to act as a board, excépt when together in session. They then act as a body or unit. The statute requires the clerk to record, in a book to be provided for the. purpose, all their official" proceedings. * * The public, for whom they act, have the right to-their best judgment, after free and full discussion and consultation among themselves of, and upon, the public matters intrusted to them,. ■ in the session provided .for by the statute.” (McCortle v. Bates, 29 Ohio St. 419.)
The records of the board of trustees of the village of Sea Cliff" show, not that the board, -as such, ever arrived at any determination -with reference to the discontinuance of Dayton.street, but that a-, paper was placed on the minutes purporting tó be such a determination, previously signed by the. members, at- a time when .the board was not in session- and when, no meeting thereof was held. This is-not the adjudication contemplated by the statute, and it has no-validity or force.
But it is objected in behalf of the defendants' that the relator has not shown himself to be an aggrieved person by the determination sought to be reviewed, in such a sense as to entitle him to relief by certiorari. In his petition, the relator alleges that by the proposed discontinuance of Dayton street he is deprived of the only direct way to reach the shore of Hempstead harbor, which is but about two
The alleged determination of the defendants should be annulled, with costs.
All concurred; Cullen, J., in result.
Determination annulled, with ten dollars costs and disbursements.