Weston v. City of Newburgh — 51 N.Y. St. Rep. 414

Majority

p. 414

Wilbur H. Weston, Pl'ff, v. The City of Newburgh et al., Def’ts.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

1. Municipal corporations — Special election for extraordinary expenditure.

The common council of defendant being desirous of purchasing plaintiff’s building for a city hall, passed a resolution calling a special election, and estimating the amount necessary to be raised would not exceed $50,000, for the following purposes, viz., for the purchase of the building; said building to be remodeled, converted and changed so as to be suitable for such use, and that it was necessary to raise $18,000 to make the necessary changes and alterations. The question submitted to the electors was “for the iaising by tax of a sum not exceeding $50,000 for purchasing” the building; “ said b; ilding to be remodeled, converted and changed so‘as to be made suitable for use as a city hall and station-house combined.” The price asked for the building was $32,000. The charter required that when more than one object for a special tax was proposed at an election, each should be separately acted upon. Held, that the question was properly submitted; that the item was a single one.

2. Same — Mandamus.

A proceeding by mandamus to compel performance of the contract of sale is proper in such a case to determine the legality of the bonds to be issued under the power given by the vote.

Submission of controversy without action.

M. H. Hirschberg and W. D. Dickey, for pl’ff; C. L. Waring, for def’t; L. S. Sterrit (E. L. Fancher, of counsel), for taxpayers.

The submission shows that there is a building in Newburgh called the Bazzoni Building which the city wished to purchase for municipal purposes. The plaintiff owned the property, and asked $32,000 for the same, which the city was willing to give, and passed resolutions to that effect. It was necessary to expend $18,000 as additional thereto to fit the building up so as to meet the municipal necessities. By chapter 541, Laws of 1865, title 5, § 21, it was necessary to' submit the question whether the people would authorize the city to raise the money, and to that end the common council passed these resolutions :

“ The following resolutions were also passed and adopted by the common council at said meeting, August 2, 1892 :

“ Resolved, That the objects hereinafter named be included in the notice for special election to be held Wednesday, September 7V 1892 ; and that the following resolutions be adopted :

■ “ Resolved, That the common council hereby estimate the sum necessary to be raised for the purpose hereinafter stated will not. exceed $50,000, and the objects for which said sum is required are as follows, viz.:

“ For purchasing the large four-story brick building known as-the Bazzoni building, located on the southwest corner of Broadway and Grand street; said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station house combined.

“ The common council are of the opinion that this building is

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conveniently situated for the purpose of a city hall, and that the-price at which the same can be purchased is a reasonable figure; that it is a matter of economy for the city to be the possessor and owner of a city hall, and also that this building is substantially built, and so constructed and arranged as to make it easily possible to change and alter the same in such a manner as to be easily suitable for the offices of mayor, city clerk, city collector, health officer, city surveyor, excise board, street superintendent, marshal, recorder’s court and station house all combined, including cells-for prisoners.

“ Second. That it is necessary to raise a sum not exceeding $18,000 for the purpose of making necessary changes and alterations in and to the brick building known as the Bazzoni building so as to render the same suitable for the purpose of a city hall hereinbefore mentioned.”

The section of the city charter provided that if there should be: more than one object for a special tax proposed at any election, the word “ for ” or “ against ” must be placed opposite each one of these objects of taxation. The object of the tax as proposed: to the election was as follows:

“ For the raising by tax of a sum not exceeding $50,000 for purchasing the large four-story brick building known as the Bazzoni building, located on the southwest corner of Broadway and Grand street. Said building to be remodeled, converted and changed so as to be made suitable for use as a city hall and station house combined.”

The item is a single one. No assent would be proper by which the city could raise one sum without the other. If the election would not buy the building there was no need of the $18,000, and if the building was approved, it was useless for the purposes intended without the expenditure of the $18,000. The election approved the item as it stood: $50,000 for the building and fitting it up. The plaintiff is willing to sell and the city is willing to take. The plaintiff is entitled to a writ of mandamus to compel the performance of the contract. This form of action is needed to determine the legality of the bonds to be given so as to raise the money under the power granted by the vote. No one has any standing but the land owner and the city.

Judgment for the plaintiff upon the submitted case.

Pratt, J., concurs; Dykman, J., not sitting.