O'Keeffe v. Dugan

Appellate Division of the Supreme Court of New York

O'Keeffe v. Dugan

185 A.D. 53, 172 N.Y.S. 558, 1918 N.Y. App. Div. LEXIS 6653

Appellate Division of the Supreme Court of the State of New York·Decided November 4, 1918·Published·Cited by 9 cases

Opinions

Blackmar, J.:

The primary intent of the Legislature, plainly expressed in the Liquor Tax Law,* is that if the electors of a town to the number of ten per centum of the votes cast at the next preceding general election desire local option, the question shall be submitted to a vote, and I think the statute should be liberally construed to effect such intent. The General Construction Law should be read into every statute subsequently enacted unless the wording of such later statute plainly, expresses a contrary intent. The Liquor Tax Law provides that the petition for submitting the question at the election shall be signed and acknowledged by such electors before a notary public. The General Construction Law† (§§ 10, 11) provides in effect that the word “ acknowledgment ” includes proof by a subscribing witness. I think, therefore, that the petition in the present case, in which some of the signatures were proved by a subscribing witness, is sufficient.

The words “ by such electors ” in the statute prevent signatures by agents, and were evidently used for that purpose. The argument drawn from the location of these words after the word “ acknowledged ” instead of after the word “ signed ” is entirely too narrow and technical to support an argument which nullifies the primary intent of the Legislature. There is nothing in the statute requiring that the signature should be appended in the presence of the notary.

The order should be reversed, without costs, and the motion denied, without costs.

Kelly and Jaycox, JJ., concurred; Putnam, J., read for affirmance, with whom Jenks, P. J., concurred.

Footnotes

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Blackmar, J.:

The primary intent of the Legislature, plainly expressed in the Liquor Tax Law,* is that if the electors of a town to the number of ten per centum of the votes cast at the next preceding general election desire local option, the question shall be submitted to a vote, and I think the statute should be liberally construed to effect such intent. The General Construction Law should be read into every statute subsequently enacted unless the wording of such later statute plainly, expresses a contrary intent. The Liquor Tax Law provides that the petition for submitting the question at the election shall be signed and acknowledged by such electors before a notary public. The General Construction Law† (§§ 10, 11) provides in effect that the word “ acknowledgment ” includes proof by a subscribing witness. I think, therefore, that the petition in the present case, in which some of the signatures were proved by a subscribing witness, is sufficient.

The words “ by such electors ” in the statute prevent signatures by agents, and were evidently used for that purpose. The argument drawn from the location of these words after the word “ acknowledged ” instead of after the word “ signed ” is entirely too narrow and technical to support an argument which nullifies the primary intent of the Legislature. There is nothing in the statute requiring that the signature should be appended in the presence of the notary.

The order should be reversed, without costs, and the motion denied, without costs.

Kelly and Jaycox, JJ., concurred; Putnam, J., read for affirmance, with whom Jenks, P. J., concurred.

Footnotes

O'Keeffe v. Dugan, 185 A.D. 53, 172 N.Y.S. 558, 1918 N.Y. App. Div. LEXIS 6653 (N.Y. Ct. App. 1918).

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Opinions

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