In re the Common Council of the City of Lackawanna

158 A.D. 263, 143 N.Y.S. 198, 1913 N.Y. App. Div. LEXIS 7328

Opinions

Kruse, P. J.:

I concur in the construction Mr. Justice Lambert puts upon the statute under which this proceeding is brought and all he says upon that subject. It seems to me, however, that the conclusion which he reaches, that the infirmity in the proceedings was a mere irregularity or technicality, is not well founded. The charter of the city of Lackawanna (Laws of 1909, chap. 574:, § 86, as amd. by Laws of 1912, chap. 355) requires the common council to publish the resolutions and estimates together with the notice of the time and place of the special election, and the specific question to be decided at the special election, according to the statute, is whether the amount of such expenditure shall be raised by tax. The ballot is required to state the amount of the expenditure. I think the statute requires that this amount shall be the amount as estimated by the common council and published in the notice. I think the application should have been denied.

All concurred, Merrell, J., in result only in a separate memorandum, except Lambert, J.; who dissented in an opinion.