Lent v. Town Board of Hempstead

8 Misc. 2d 184, 166 N.Y.S.2d 802, 1957 N.Y. Misc. LEXIS 2581

• Court: New York Supreme Court
• Decided: August 26, 1957
• Status: Published

Opinion

Mario Pittoet, J.

This is a proceeding brought under section 195 of the Town Law by two residents and taxpayers of the Town of Hempstead and of the garbage district, to review a determination of the Town Board which established the district. The petitioners contend that the Town Board failed to comply with section 191 of the Town Law to the detriment of the taxpayers within the areas involved.

The Town Board is the legislative body for the Town of Hemp-stead, and its creation of an improvement district such as the garbage district herein is a legislative act as to which it has absolute discretion so long as it acts within its powers. (People ex rel. O’Connor v. Board of Supervisors of Queens County, 153 N. Y. 370; Matter of Village of Hewlett Harbor v. County of Nassau, 272 App. Div. 1065.)

The Town Board was empowered by and complied with section 222.0 of the Nassau County Civil Divisions Act (L. 1939, eh. 273, as amd. by L. 1954, ch. 650) which provides: “ The town board of any town in the county of Nassau, upon its own motion and without a petition, may establish or extend any * * * refuse and garbage * * * district ’ ’.

The Town Board was not required to comply with section 191 of the Town Law. Insofar as the two are in conflict the Nassau County Civil Divisions Act, a special law, prevails over the Town Law, a general law. (Strauch v. Town of Oyster Bay, 263 App. Div. 833; see, also, McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 397.)

Therefore, since the Town Board, a legislative body, in creating the garbage district performed a legislative act authorized by the Legislature of the State of New York, all other objections raised by the petitioners may not be considered by the court.

The petition is dismissed. Submit order.