People ex rel. Kittredge v. Mabie — 26 N.Y.S. 450

p. 450

(73 Hun, 495.)

PEOPLE ex rel. KITTREDGE et al. v. MABIE et al.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

' Villages—Enlarging Boundaries—Special Charter.

The village of Peekskill, having a special charter, dating from 1816, fixing its boundaries, cannot be enlarged by the county board of supervisors under Laws 1870, c. 291, since that act, being general, expressly confines its application to villages incorporated under it, nor under Laws 1884, c. 308, granting the trustees and officers of a specially chartered village all powers granted in any general act to incorporate villages, not conflicting with the charter. Barnard, P. J., dissenting. 23 N. Y. Supp. 801 , affirmed.

Appeal from special term, Westchester county.

Certiorari on relation of Lucy D. Kittredge and others to John Mabie and others, assessors of the village of Peekskill, to strike out of the assessment roll certain assessments. From an order in favor of relators, ( 23 N. Y. Supp. 801 ,) respondents appeal.

Affirmed.

The village of Peekskill, Westchester county, was incorporated by a special act in 1816, amended several times, and finally consolidated in Laws 1883, c. 117, which fixed the village boundaries. July 19, 1892, the county board of supervisors ordained an enlargement of said boundaries so as to include a large additional territory, embracing lands of relators. Laws 1870, c. 291, a general law to incorporate villages, by section 33 of title 8, empowers supervisors to enlarge the boundaries of any incorporated village, but in section 28 expressly confines the application of the act to villages incorporated thereunder. Laws 1884, c. 308, grants the trustees and officers of any village created by special charter the same powers as are prescribed in any general act for the incorporation of villages, except as such special charter may conflict therewith.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ..

p. 451

Leverett F. Crumb, (Edward Wells, of counsel,) for appellants.

Cyrus Wm. Horton, (George F. Canfield and Franklin Couch, of counsel,) for respondents.

Section 28, tit. 8, c. 291, Laws 1870, provides, in terms, that its provisions shall only apply to villages incorporated under it. The fact that the legislature in 1873, and again in 1893, passed special acts concerning the village of Poughkeepsie, shows it was not then supposed that the board of supervisors had the powers now claimed. The act of 1884 gives no such powers. The order of the special term must be affirmed, with costs.

DYKMAN, J., concurs.

(dissenting.) The village of Peekskill was incorporated by special act. No right was given by its charter to increase its territory. Chapter 117, Laws 1883. The general act for the incorporation of villages was only applicable to villages incorporated under its provision. The boards of supervisors had the power -bo extend village limits in such villages as were incorporated under the general act. By chapter 308, Laws 1884, all villages created by special charter were clothed with all power prescribed by the general act for the incorporation of villages within this state, except where the special charter is in conflict with the general law. This section gave the trustees of Peekskill village power to petition for an increase of territory, and the power given to the supervisors to extend or diminish territories in villages under the general law was carried to villages created by special charter through the enactment of 1884. The village limits were therefore properly extended, and the order directing the assessors to vacate the assesssment of relators’ property should be reversed, ■and the writ of certiorari dismissed, with costs.