People ex rel. Weeks v. Board of Supervisors

25 N.Y. Sup. Ct. 4

• Court: New York Supreme Court
• Decided: May 15, 1879
• Status: Published

Opinion

BaenaRD, P. J.:

The question presented by this appeal arises under chapter 855 of the Laws of 1869, and the amendments thereto. By section one of this chapter the Legislature extended the power of the boards of supervisors in all the counties of the State, except New York and Kings. Among other powers granted such boards of supervisors was the power to authorize towns to borrow money to build and repair roads and bridges. In 1872 an amendment was passed (chap. 285), adding section nine to the original act, authorizing the board of supervisors of Queens county to authorize the towns therein to borrow money upon the credit of the town “to build, widen, grade, macadamize or repair any road or roads, or to purchase for public use any plankroad, toll road or toll bridges in such town or towns, or to pay any existing debt incurred in good faith by or on behalf of such town for such purpose before the passage of this act.”

The authority to enable the boards of supervisors to act was provided in the act (sec. 9) to be upon “-written applications of the supervisor, town clerk, justices of the peace, and commissioners of highways, or a majority of them of such town, or if more than one town is affected thereby, then of said officers or a majority of them of each of such towns.” While this act provided for the contingency of a road extending into more than one town, it was silent as to roads in towns wherein there were incorporated villages in which the powers of the town commissioners of highways were taken away and given to the village trustees. There were such towns in Queens county, and apparently to meet the case the Legislature, by chapter 323, Laws of 1873, provided by amendment that whore the proposed road passed through an incorporated village, the consent of a majority of the trustees should also be obtained before the supervisors could grant the power to borrow money for such road. In the case under consideration, .the consent of the town officers was obtained. The consent of live out of seven trustees of the village of Flushing was obtained, but it does not appear that the trustees took a vote upon the question. We think that action by the boards of trustees was not required by this amendment. The words are, “majority óf the trustees” of the village. A majority of these trustees did sign a written request for authority to make the loan. The road for which the loan was made only passed through the village of Flushing. There are two other incorporated villages, Whitostone and College Point, also situated in and carved out of territory of the town of Flushing. Except for village purposes the territory embraced in the villages still forms part of the town of Flushing. It was within the power of the Legislature to authorize a loan upon a town which included villages, for the purpose of laying and improving a road or roads which did not pass in whole or in part through either of the villages.

The order should be reversed, with costs and disbursements.

DyicmaN, J., concurred; Gilbert, J., not sitting.

Judgment and order reversed, with costs and disbursements.