People v. Bird — 30 N.Y. St. Rep. 156

Majority

p. 156

The People, App’lts, v. Seth Bird et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Villages—Wateb Commissionebs—Election.

Defendants were elected water commissioners at an election called at the request of a majority of the taxpayers, in pursuance of Laws 1885, chap. 170, and entered upon their duties with the assent of the trustees. Held, that such election was legal.

2. Same.

Where the clerk of the vdlage testified that the names on the request represented a majority of all the taxpayers as contained in the last assessment roll, Held, that in the absence of proof that the signatures were not genuine, this was sufficient to show that the petition contained a. majority of the taxpayers.

Appeal from judgment in favor of defendants and from order-denying motion for a new trial on the case.

Action to prevent the defendants from retaining the office of, or acting as, water commissioners of the village of Tarrytown, since the president and board of trustees of that village were, and are,, the water commissioners thereof.

Cliarles F. Tabor, attorney-general, and F. T. Lovatt, for app’lts J. ¡S. Millard, for resp’ts.

By chap. 181, Laws of 1875, the authorities-of incorporated villages were clothed with power to organize themselves into boards of water commissioners, and supply their villages with pure and wholesome water.

By chap. 86, Laws of 1879, the authorities of villages in the previous act were defined to be the president and trustees thereof. By chap. 170, Laws of 1885, the legislature provided that the term authorities should include first the president and trustees thereof with terms of office for the terms for which they were elected, or second, the same number of commissioners to be-elected at a special election called by the trustees on the written request of a majority of the resident taxpayers on the last -assessment-roll. In July, 1887, a special meeting of the taxpayers-was called by the trustees of Tarrytown for the 15th of August, 1887, according to the requirement of § 21 of chap. 181, Laws of 1875. This meeting was necessary before the taxes needed for the water system could be legalized. The meeting voted in favor of the tax.

The president and trustees were then the water commissioners, and so continued to be, themselves and successors, up to the 12th of September, 1887. On the 25th of August, 1887, a majority of the resident taxpayers requested in writing an election of a board of water commissioners under the law of 1885. Such a

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call was made, and the defendants were elected water commissioners of the village on the 12th of September, 1887, and immediately entered upon the duties of the office with the assent of the trustees.

The election of the water board was legal. The right of the trustees to be a water board, in the absence of an election of commissioners upon request of the taxpayers, was only provisional. If a majority of the taxpayers made the request for a popular election the trastees were compelled to call the meeting, and the persons elected became the board of water commissioners upon filing their official oath.

The proof that the petition contained a majority of the resident taxpayers was sufficient. The witness Brown, who was the cleric of the village, testified that the names represented a majority of all the taxpayers of the village as contained in their last assessment-roll.

The trustees acknowledged the jurisdictional fact. The petition contained a certificate that W. S. Bird had obtained all the names on the petition. Ho proof was offered on the trial that the names on the petition were other than genuine. Under these circumstances the presumption should be in favor of the petition.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs.