Stephens v. Minnerly — 10 N.Y. Sup. Ct. 566

Majority

p. 566

JOHN R. STEPHENS and another, Appellants, v. WILLIAM F. MINNERLY and others, Respondents. THE PEOPLE ex rel. AMBROSE C. KINGSLAND and another, Appellants, v. WILLIAM F. MINNERLY and others, Respondents.

Headnote

Village—incorporation of—when proceedings for, not engoineS,.

Courts will not enjoin parties from taking proceedings, authorized by law, to incorporate a village, because the parties applying for the injunction will be subjected to burdens of local government, disproportionate to the benefits accruing to them therefrom.

Appeal from an order dissolving an injunction granted in this action.

George W. Parsons, for the appellants.

The papers show that defendants’ proceedings would be specially injurious to plaintiffs’ property. The distinction in this case, in respect to special interest of plaintiffs, is manifestly clearer and stronger than existed in the leading case of Milhau v. Sharp, reported first in 28 Barbour, 228, and affirmed in 27 New Yorb, 611. The plaintiff in that case showed that there would be explicit injury to his property by the construction, but not differing in principle from injury which might be common to all the owners on the street. ( 2 Abb., 252 ; Hanlo n v. Supervisors, etc., 8 Abb. [N. S.], 268; S. C., 57 Barb. 390 ; Francis v. Schoellkoff, 53 N. Y., 154 , 155; see, also, Davis v. The Mayor, etc., of N. Y., 14 id., 526, and cases there cited; Doolittle v. The Supervisors, etc., 18 id., 163.) It was proper for these plaintiffs to sue for the benefit of any and all similarly situated. (Code, § 119; Towner v. Tooley, 38 Barb., 598 ; Edwards on Parties, 136, 137; 3 John. Ch., 555; 1 Paige, 273.) The com-, plaint shows that the number similarly situated was i/ndejmite, and could not be fully known. (Coe v. Beckwith, 10 Abb., 296 ; S. C., 31 Barb., 339 ; Bouton v. City of Brooklyn, 15 id., 392 .) Statutes must be expounded according to the meaning, and not according to the letter. (Pillow v. Bushnell, 5 Barb., 156 ; People v. N. Y. C. R. R. Co., 13 N. Y., 78 ; affirming, 25 Barb., 199 ; Holmes v.

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Carley, 31 N. Y., 290 ; Chase v. N. Y. C. R. R. Co., 26 id., 523; Bac. Abt., tit. Stat., 1, 5, 10; Dwarris’ Stat., rule 8 [American Rules], 144; People v. Utica Ins. Co., 15 Johns., 380 , 381, Thompson, Ch. J.; 1 Kent, 462; Bac. Abr., tit. Stat., 1, 15; Plow., 18, 88; 2 Coke’s Inst., 64; 5 T. R., 449; Jackson v. Collins, 3 Cow., 89 , 96, Savage, Ch. J.; People v. Draper, 15 N. Y., 532 ; Donaldson v. Wood, 22 Wend., 395 ; Potter’s Dwarris on Statutes, etc., 128; Rule 13 of the 45 Maxims of Vattel; Plowd., 465; Vattel, Bk. 2, chap. 17, § 285; 3 Sir E. Coke’s R., 15 [Caudey's case]; 2 Coke’s Insts., 25; vide 1 E. Coke’s 1st Insts.,. 24, b.)

Thomas Nelson, for the respondents.

The possible increase of taxation to which plaintiffs may be subject, or their liability to contribute to the expense of creating and maintaining said incorporation, gives the plaintiffs no right to bring this action. (Doolittle v. Supervisors of Broome Co., 18 N. Y., 155 ; Roosevelt v. Draper, 23 id., 323; Ayres v. Lowrie, 63 Barb., 458 ; Tift v. City of Buffalo, N. Y. Sup. Ct., vol. 1, p. 150; High on Injunctions, 291, § 522; Hill, on Injunctions, 45, § 92.) This statute is one of the legal provisions to enable communities to frame for themselves and carry on their own municipal government, and the statute is to be construed liberally, so as to enable the object for which the law was made to be accomplished, and not in a narrow spirit. ( Weed v. Tucker, 19 N. Y., 422 , 433; White v. Wager, 32 Barb., 250 ; 25 N. Y., 328 ; Fort v. Burch, 6 Barb., 60 -75.)

It is proposed, under the general law, to incorporate the village of North Tarry town, to comprise an area of two square miles. Certain citizens, residing or owning property within the proposed village limits, bring an action to enjoin the persons and officers, of a class designated by law to act in such cases, from consummating the undertaking, upon the allegations that some square mile of the mapped territory does not contain the requisite population; that plaintiffs would be subjected to burdens of local government, vastly disproportionate to the benefits accruing therefrom; and that the proceedings therefor, for the incorporation, have not been shown to have been entirely formal. The plaintiffs, if injured at all, will

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suffer only in a manner common to the rest of the villagers, with an unascertainable difference in degree; and therefore, under well settled rules of law, their action must fail.

The attorney-general also brings an action upon the relation of the same parties, and for the same purpose. Very rarely, if ever, would any two persons propose precisely the same lines for the boundaries of a village, and a village government can seldom confer or inflict an exact’equality of benefit or injury; and yet village governments are authorized for a beneficial purpose, and are generally administered with beneficial results. Courts should hesitate before dispensing equity to the possible subversion - of law, through a broad doctrine that might permit a public officer, upon affidavits, to stop in limini the formation of any proposed local government. Even, if no doubt existed as to the authority of the attorney-general to maintain this action, the law has provided sufficient redress in case of failure to perfect a legal incorporation, and the facts as presenfed to the court, do not call for the fetters of a preliminary injunction.

Present — Barnard, P. J., and Donohue, J.

O^der affirmed, with costs.