Bergen v. Gubna — 17 N.Y. Sup. Ct. 11

Majority

p. 11

TEUNIS G. BERGEN, Appellant, v. ADOLPH GUBNA, as Supervisor, and others, Respondents.

Headnote

Town MU — purcMse of site for — application to supervisors tlmefon', unde/r § 20, chap. 482 of 1875 — wMt is pn'oper.

Upon the application of certain tax-payers of the town of New Utrecht, the hoard of supervisors ordered a special town meeting “to consider and decide the question of purchasing a site for a town hall.” At a meeting held in pursuance of this order, a resolution was adopted “that the question he determined by ballot of the votes of this town meeting, whether a site shall be purchased for a town hall, and a building purchased or erected for such hall. * * * ”

p. 12

Upon the return of an affirmative vote on this resolution to the hoard of supervisors, authority was given to the town to purchase the site and erect the hall, and to borrow money for that purpose. Held, that the resolution adopted by the town meeting was a sufficient compliance with section SO, chapter 482, of 1875, empowering the board of supervisors to authorize any town, when a/pplicaUon shall he made therefor by vote of a majority of the electors * * * to purchase a site for a town hall, and erect a building thereon.

The power conferred by this section is not restricted by chapter 197, of 1847, and chapter 157, of 1849, authorizing the erection of a town -hall by the said town, and limiting the amount to be expended therefor.

Appeal from an order made at tbe Special Term dissolving a temporary injunction granted in tbis action, and denying a motion to continue tbe same.

Tbe action was brought by tbe plaintiff, a resident and tax-payer of tbe town of New TTtrecbt, in tbe county of Kings, to restrain tbe defendant Gubna, supervisor of said town, from issuing bonds in tbe name of tbe town to provide means for purchasing a site and erecting a town ball thereon, and to restrain tbe other officers of tbe town from co-operating with him.

John Wmslow, for tbe appellant.

John H. Bergen, for tbe respondents.

By section 19 of chapter 482 of tbe Laws of 1875, tbe legislature enacted that “boards of supervisors should have power to provide for tbe calling and bolding of special town meetings, to consider and decide any question upon which tbe electors of tbe town may be called to take action in accordance with tbe provisions of tbis act.”

By section 20 of tbe same act, “ power is given to tbe board of supervisors to authorize any town, when application shall be made therefor by vote of a majority of tbe electors voting on tbe question at any annual or duly called special town meeting, * * * to purchase a site for a town or village ball, and to purchase or erect a building for such ball, and to raise money as may be necessary from time to time for tbe care, preservation and improvement of such ball.”

p. 13

On. tbe 28th of June, 1876, a petition was presented to tbe board of supervisors of Kings county, from certain tax-payers of New Utrecbt, asking tbe board to call a special town meeting “ to consider and decide tbe question of purchasing a site * * * for a town ball for said town.”

• Tbe board ordered a special town meeting to consider and decide this question to be beld on lltb July, 1876. At this meeting tbe electors voted by a large majority in favor of tbe following resolution :

Resolved, “ That tbe question be determined by ballot by tbe votes of tbis town meeting, whether a site shall be purchased for a town ball, and a building purchased or erected for such hall, tbe amount to be raised by tax for such purpose not to exceed tbe sum of $10,000, and money raised as may be necessary from time to time for tbe care, preservation and improvement of such ball.” Upon tbe return of tbe vote on tbis resolution to tbe board of supervisors, it authorized tbe town of New "Utrecht to purchase tbe site and erect tbe ball, and for that purpose to borrow money not exceeding $10,000.

Tbe plaintiff objects to tbe legality of tbe proceedings, because tbe vote of tbe town meeting was not to make tbe application to tbe board of supervisors, but upon tbe question of tbe willingness of tbe electors to purchase tbe site, and erect tbe ball. I think tbe objection of no weight. Tbe object of tbe law is plain. Tbe supervisors may, with tbe consent and on the application of tbe town, authorize it to buy tbe site and build tbe ball. Tbe electors voted that a site should be purchased and a ball built.

TJpon tbis tbe supervisors conferred tbe power. Tbe consent of tbe town, and tbe authority of tbe board concur, and that is all which is called for by tbe act in question.

By chapter 197 of Laws of 1847, any town was authorized to vote a sum of money for tbe purchase of a site and building for a town ball, not exceeding in number of dollars twice tbe number of electors in tbe town. By chapter 157, Laws of 1849, New Utrecbt was permitted to raise tbis amount in three equal installments.

In 1870, tbe electors of New Utrecbt voted to raise all it could raise, $900, for tbe site and ball. Tbe money is now in tbe bank to tbe credit of tbe town.

p. 14

It is clarified that these laws are still in force, and that New Utrecht can proceed only under these laws. The power conferred upon towns and boards of supervisors by the act of 18J5, is unrestricted. It covers all cases which come within its provisions. There is no question involved as to the repeal of the Laws of 1841 and 1849. These laws applied only to towns where there was no town-house, and limited the money which could be raised to obtain one. If there had been a $900 town hall built under the law of 1841, it would be no reason why the town and board of supervisors could not obtain a better one under the law of 1815.

The order denying an injunction should be affirmed, with costs and disbursements.

DykMAN, J., concurred. Gilbert, J., not sitting.

Order.affirmed, with costs and disbursements.