Hendrickson v. City of New York , 52 N.Y.S. 790 ( 1898 )

Gaynor J.

• It is conceded, and I find as matters of fact, that a petition of 68 of the taxable inhabitants of the town for the establishing of the district (which it bounded and-described) and . the making of a contract tó light the same was filed with the town clerk; that the town board thereupon caused notice to-be published in a newspaper published in the town for one week giving notice in so many words that “ The following petition being received by the town board ”, it would sit at the Town Hall on December 10th, 1897, at an hour named, “ for the purpose of acting on the same ”, the said petition which purported in so many words to> be by “ the undersigned taxable inhabitants of the town ” being published under and as part and parcel of the said notice; that at the time named in the said notice the town board sat in the Town HaE and gave a hearing upon the petition, and established the district; and that thereafter, viz., on December 17th, 1897, it entered into a contract with the defendant company for the lighting of the said district by electric lights for ten years from that date.

To establish the invalidity of the said contract, the plaintiff makes the single objection that the said notipe did not give notice of the filing of the said petition with the town clerk (ch. 309, Laws 1896). Section 2 requires that the petition shall be by not less than 25 taxable inhabitants, and “ filed with the town clerk ”, and makes the jurisdiction of the town board to take action depend on such filing. . Section 3 is very inartificial, inexact, ungrammatical and confused, but the said requirement of the notice which is insisted‘upon, whether the publication is to be in a newspaper or by posting for lack of a newspaper, is in it.

I think the notice was broad enough to be in substantial compliance with the statute. It was that the town board had received the petition, instead of in so many words that the petition had been filed with the town clerk. By the fair effect of the statute the notice by the town board that it had received the petition was notice that it had been filed with the town clerk, for that is the only way prescribed by the statute for the presentation of it to the town board, and 'for the town board’s legal receipt of it.. The petition having been in fact filed with the town clerk, the statement in the notice that the town board had received the1 petition, must be understood as having reference to the manner prescribed by. the statute for the presentation and legal receipt of it by the town board, and. thus 'is the notice as broad as the statute' (Terrel v. Wheeler, 123 N. Y. p. 84). •

I do not deem the strict rule of cases like Merritt v. Village of Portchester (71 N. Y. 309) and Stebbins v. Kay (123 N. Y. 34) applicable. In the one case the commissioners who were to apportion and cast the assessments did not take the oath prescribed by statute, and in the other they did not make and subscribe the certificate by which alone the apportionment could be made and the-assessments * cast. They present a very different qrrestion from the one now at bar.

The defendant the City of New York presents the point that the lighting contract can' have no validity after January 1st, 1898. The act creating the present city of New York having been passed prior to the making of the contract, and the corporate life of the town being thereby limited to January 1st, it may be that the law in respect of the power of private trustees to make contracts to extend beyond the trust term is applicable. But as that question was not argued at the bar, and no precedents touching it have been cited, I do not feel that I should go into it, especially in view of the many other similar official acts involved in a decision of. it. Let it await diligent preparation and careful argument.

Judgment for the defendants.