Lawrence v. Smith , 52 N.Y.S. 724 ( 1898 )

Gaynor J.

The Town Board had no power to include any part of the territory of an incorporated village in the district (ch, 309, Laws of 1896). Its action in establishing the district and making the contract is therefore void. The court has not the power to separate the district and set up a new one. The assessments upon property in such new district to pay the expense of the lights would be as void as similar assessments laid within the present district. And even if the court had the power to separate the good from the bad in the resolution of the town board establishing the district, it could not do so unless they are so independent of each other that the court could see and say that the town board would have exercised its discretion to pass the resolution with the bad left out, as is the rule in respect of statutes void in part (Matter of Kenny, 23 Misc. Rep., at p. 14, and cases cited).

Judgment for the plaintiff with costs.