Hyperlawhypertext legal databasebeta Gray v. Town Board of the Town of North Hempstead 303 N.Y. 575

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Gray v. Town Board of the Town of North Hempstead

303 N.Y. 575 Court N.Y. Decision date 1952-03-14 English

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p. 575
In the Matter of A. Freeman Gray et al., Appellants, against Town Board of the Town of North Hempstead, Nassau County, et al., Respondents.
Argued January 25, 1952;
decided March 14, 1952.
p. 576
Charles Kingsley and Joseph P. Kissling for appellants.
I. The town board did not have jurisdiction ■ of the subject matter of the petition at the time of issuing'the notice of public hearing. (Stillman v. City of Olean, 228 N. Y. 322 ; Suburban Elec. Light Co. v. Town of Hempstead, 38 App. Div. 355 ; Matter of Neuendorffer, 169 Misc. 233 ; Matter of Floyd-Jones v. Town Bd. of Oyster Bay, 249 N. Y. 398 .) II. The town board determined contrary to fact that all the property and property owners within the proposed extension are benefited thereby. (People ex rel. Delaware, L. & W. R. R. Co. v. Wildy, 262 N. Y. 109 .) III. The determination of the town board that all of the property and property owners benefited are included within the limitation of the proposed extension is contrary to the evidence and states a proposition which is an impossibility as a matter of law. (People ex rel. Delaware, L. & W. R. R. Co. v. Wildy, 262 N. Y. 109 ; Eastman Kodak Co. v. Richards, 123 Misc. 83 .)
James L. Dowsey, Jr., Town Attorney (Bertram B. Daiker of counsel), for respondents.
Attempted revocation of signatures does not destroy the town board’s jurisdiction of the subject matter of the petition. (People ex rel. McGrath v. Weiss, 216 App. Div. 505 , 245 N. Y. 518 ; Matter of Neuendorffer, 169 Misc. 233 .)

We hold that any signer of a petition described in section" 191 of the Town Law has a right, up to the time such petition is acted on by the town board by the publication or posting of a notice of hearing (Town Law, § 194), to withdraw and revoke his signature by filing with the town clerk a duly acknowledged statement of such withdrawal and revocation (see People ex rel. Irwin v. Sawyer, 52 N. Y. 296 ; People ex rel.

p. 577
Yawger v. Allen, 52 N. Y. 538 ). Nothing to the contrary was held in People ex rel. McGrath v. Weiss ( 216 App. Div. 505 , affd. 245 N. Y. 518 ) since in that instance the attempted withdrawal of signatures was by a petition which was not presented to the town board until the time of its hearing, and thus a considerable time after the town board had taken jurisdiction of the original petition by publishing and posting notice of such hearing (see Matter of Floyd-Jones v. Town Bd. of Oyster Bay, 249 N. Y. 398 , 405).

The orders should be reversed, with costs in all courts, and the determination of the town board annulled.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Orders reversed, etc.

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