In re Pearsall

New York Supreme Court

In re Pearsall

9 Abb. Pr. 203

DecidedApril 15, 1870

StatusPublished

This text of 9 Abb. Pr. 203 (In re Pearsall) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Pearsall, 9 Abb. Pr. 203 (N.Y. Super. Ct. 1870).

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Opinion

Brady, J.

— The confirmation of the assessment in 1861 was irregular—there being but two of the board of revision and correction present. The subsequent confirmation in December, 1869, was legal and valid.

This case is unlike the Palmer case (1 Abb. Pr. N. S., 30). It appeared, in reference to that assessment, that two members of the board met and acted upon it by confirming it, and that, at the next meeting of the board, all being present, the minutes of the previous meeting were read and approved. In this case it appears that in December, 1869, the assessments which had, as already suggested, been acted upon by two of the board only, were, at a full meeting of the board, presented by the comptroller, and, on motion of the counsel to the corporation, unanimously confirmed. It differs, therefore, materially from the Palmer case. The minutes in reference to the confirmation of the assessment in that case when two of the board were present, were read and approved only, and the approval was of an irregular proceeding; but here the whole board acted, independently of the previous act, or attempted act, of confirmation, and confirmed the assessment. In the Palmer case, the whole board approved the minutes recording a proceeding by two of the board only, without acting upon the subjects embraced in them ; and such approval was a formal proceeding, not involving judicial action; but if it did, then it was the adoption, as their act, of a proceeding unauthorized and illegal.

Adopting the conclusion arrived at by Justice Sutbebland, in the Palmer case, that the assessment lists are not confirmed. under the act of 1861, by the omission of the board to act upon them within thirty days after their presentation, if two of the board undertake to act upon them, then the subject was kept before [205]*205the board by such action, and the time within which they could act again in relation to it was not limited. I adopt the suggestion of Justice Sutherland mentioned, to meet the objection that the board having once acted, their powers were exhausted, and they could not confirm the assessments in 1869. On this assumption, the board did not act regularly and legally until 1869, and their duties were not discharged till that time.

Order in accordance with these views.

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Brady, J.

— The confirmation of the assessment in 1861 was irregular—there being but two of the board of revision and correction present. The subsequent confirmation in December, 1869, was legal and valid.

This case is unlike the Palmer case (1 Abb. Pr. N. S., 30). It appeared, in reference to that assessment, that two members of the board met and acted upon it by confirming it, and that, at the next meeting of the board, all being present, the minutes of the previous meeting were read and approved. In this case it appears that in December, 1869, the assessments which had, as already suggested, been acted upon by two of the board only, were, at a full meeting of the board, presented by the comptroller, and, on motion of the counsel to the corporation, unanimously confirmed. It differs, therefore, materially from the Palmer case. The minutes in reference to the confirmation of the assessment in that case when two of the board were present, were read and approved only, and the approval was of an irregular proceeding; but here the whole board acted, independently of the previous act, or attempted act, of confirmation, and confirmed the assessment. In the Palmer case, the whole board approved the minutes recording a proceeding by two of the board only, without acting upon the subjects embraced in them ; and such approval was a formal proceeding, not involving judicial action; but if it did, then it was the adoption, as their act, of a proceeding unauthorized and illegal.

Adopting the conclusion arrived at by Justice Sutbebland, in the Palmer case, that the assessment lists are not confirmed. under the act of 1861, by the omission of the board to act upon them within thirty days after their presentation, if two of the board undertake to act upon them, then the subject was kept before [205]*205the board by such action, and the time within which they could act again in relation to it was not limited. I adopt the suggestion of Justice Sutherland mentioned, to meet the objection that the board having once acted, their powers were exhausted, and they could not confirm the assessments in 1869. On this assumption, the board did not act regularly and legally until 1869, and their duties were not discharged till that time.

Order in accordance with these views.

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Bluebook (online)

9 Abb. Pr. 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pearsall-nysupct-1870.