In re Merrell — 29 N.Y. St. Rep. 382

Majority

p. 382

In the Matter of the Petition of Isaiah M. Merrell, Trustee.

{Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

Schools—Appeal from refusal to vote tax.

A failure to serve on the district clerk within ten days after an adverse vote of the district a written notice that the trustee’s account will he presented to the county judge, is a sufficient ground to dismiss the proceeding before the county judge.

Appeal from order of the county judge of Richmond county denying motion to vacate and set aside an order of said county judge charging the school district with the amount of petitioner’s account.

Petitioner was one of the trustees of school district No. 8 in the' town of Northfield in said county, and as such incurred expenses in defending a suit brought against him and in proceedings before the superintendent of public instruction for his reinstatement. He presented an account of such expenses to the district meeting held August 28, 1888; but the meeting refused to order the levy of a tax therefor. He then publicly gave notice of appeal to the

p. 383

county judge, and on September 20 served on the district clerk the written notice required by law.

No appearance being made on behalf of the district, the county judge allowed said account and charged the district with its amount. Thereafter this motion was made and denied.

Lot G. Alston, for app’lt; T. W. Fitzgerald, for resp’t

The school district had the right in the first instance to vote whether or not payment should be made to a school officer who" had conducted an action or proceeding without a resolution of the district meeting. 2 B. S., 7th ed., 1187. The defendant was a trustee who came within this provision and in compliance with the law presented his account in writing. The district meeting voted against taxing the district to pay it The defendant gave notice of appeal to the county court “ orally and publicly,” as the law required upon the refusal to vote in favor of the application. The law required the officer appealing to serve on the district clerk a notice in writing that the account would be presented to the county judge on a certain day specified therein. This notice must be served within ten days after the adverse vote of the district meeting. The papers state that this vote was taken August 28, 1888. The notice on the district clerk was not served until the 20th of September, 1888. This was too late. Seymour v. Judd, 2 N. Y., 464 .

The failure to serve the notice on the clerk was sufficient ground to dismiss the proceedings. The order should therefore be reversed, with costs and disbursements.

Dykman and Pratt, JJ., concur.