In re Village of Lynbrook

The general statutory provisions relating to the incorporation of villages are contained in chapter 64 of the Consolidated Laws (Laws 1909, c. 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 of 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 he signed by the town clerk and posted in ten conspicuous places in such territory, and also published at least twice in each newspaper pubt lished 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.” Consol. Laws 1909, c. 64, as amended Laws 1910, c. 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, art. 1, c. 414, Laws 1897. 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. -a

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 1 o’clock in the afternoon and sunset. The law required that the election should be held between the hours of 1 o’clock in the afternoon and 8 o’clock in the evening. Laws 1910, c. 416. This clearly means that the polls should) be open and) remain open duing that entire period. It is in evidence that the sun set on the day in question at 29 minutes after 7 in the afternoon. The notice was 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 time, as well as the place, for