OPINION OF THE COURT
Herlihy, J.
As a preliminary matter it is noteworthy that a trial was held herein by stipulation of the parties to present evidence on both the issues of condemnation and temporary possession of property belonging to the respondent. It is solely those issues which are before the court upon this appeal.
On April 16, 1974, the plaintiff, an incorporated municipality, adopted a resolution authorizing it to own and operate an electric utility and further authorizing the issuance of $4,500,-000 serial bonds to finance the project. The resolution was approved by the eligible voters of the plaintiff at a mandatory referendum pursuant to section 360 of the General Municipal Law on May 30, 1974.
It is apparent from the record herein that the respondent is committed to the principle of resisting the effort of the plaintiff to replace it as the supplier and provider of electricity within the boundaries of plaintiff. This court has previously had the parties before it upon a petition of the respondent seeking review of a preliminary certificate issued by the Public Service Commission of the State of New York as required by section 5-a of the Condemnation Law upon the filing of a petition for a condemnation order in the County Court of St. Lawrence County on March 13, 1975 (Matter of Niagara Mohawk Power Corp. v Public Serv. Comm, of State of N. Y., 52 AD2d 388, app dsmd 40 NY2d 844).
Subsequent to the filing of the petition and an amended petition the respondent moved to dismiss the petitions upon various grounds, all of which were rejected by the court (Town of Massena v Niagara Mohawk Power Corp., 87 Misc 2d 79). Thereafter, the respondent on June 11, 1976 filed its answer to the petitions and the plaintiff renewed a motion for temporary possession. The court referred to its prior decision on the matter (id.) and adopted the factual findings made therein as the basis for the decision of most of the issues raised by the pleadings.
The court ascertained that the pleadings raised some six issues as follows:
(I.) Does the petition fail to set forth with specificity the property to be condemned?
[142]*142(II.) Did plaintiff fail to join a necessary person, the Marine Midland Bank, as a party in this action?
(III.) Did plaintiff adequately set forth in its petition the value of the property sought to be condemned, and did plaintiff negotiate with defendant in good faith for the purchase of such property?
(IV.) Is plaintiff able to complete the work or improvement for which the property is to be condemned and to provide the same for public use?
(V.) Does plaintiff’s proposed plan for providing service through a municipal electric utility system conform to and comply with the enacting resolution of the local legislative body?
(VI.) Is plaintiff entitled to grant of temporary possession?
The court in a seriatim determination of those issues found: (I) that certain specific items should be excluded from condemnation, but that the petition adequately specified the property to be condemned and was not jurisdictionally defective; (II) that the Marine Midland Bank as a mortgagee was not a necessary party to the proceedings and, accordingly, there was no jurisdictional defect in that regard; (III) that the petition adequately sets forth the value of the property sought to be condemned and plaintiff had negotiated in good faith for the purchase of the property with the further observation "that valuation must initially be determined by the commissioners”; and (IV) that insofar as the inability to complete the project is concerned, the ability "to pay the award and damages can only be resolved upon a determination by the commissioners” and further, that as a matter of proof, the failure of the plaintiff to have formal commitments from the Power Authority of the State of New York (hereinafter, Power Authority) or respondent as to the supply of power would not establish an inability to provide the service.
Upon this appeal the respondent in some of its many-faceted arguments urges that the trial court erred in determining certain of the foregoing issues; however, such suggestions are without any merit and those determinations are affirmed.
The sole determination against the plaintiff was that the proof established that it had "materially departed from both the authorized plan of acquisition (i.e., construction) and its formerly proposed method of furnishing service to customers of the municipal utility.” The court concluded "that the plans [143]*143for acquisition and method of providing service presently proposed so materially depart from those enacted by the Town Board and electorate that the petition for judgment of condemnation must be dismissed.”
The resolution1 of the plaintiff as approved at a referendum provided in its section 3 that the system was to be condemned from the respondent with construction thereafter of "a substation and transmission line”. In its section 4 it was proposed that service would be furnished by purchasing power from the Power Authority. It was also provided in section 4 that the [144]*144method of furnishing service would be ultimately by a direct link with the lines of the Power Authority, and in the interim by transmission over existing lines of respondent from the Power Authority.
The deviation consists of no present intention to construct separate facilities for a direct line with the Power Authority and now intending to furnish service solely by purchase of power from the Power Authority by transmission to town boundaries over incoming lines of the respondent. Section 360 of the General Municipal Law2 is the statute which controls the instant case (see O’Flynn v Village of East Rochester, 292 NY 156).
Upon this appeal there are presented the questions of whether or not an intended deviation from the original proposed method of acquiring property and furnishing the same would preclude condemnation and/or temporary possession; and further, whether or not in view of the proposals in the [145]*145resolution any change of intention as to furnishing service was so material as to defeat the purpose of condemnation.
The County Court did not set forth the reasoning whereby it would conclude that a departure would, as a matter of law, preclude the condemnation, but it did find that the original ordinance had been properly enacted. The record establishes that the proceeding was commenced pursuant to a valid viable and enforceable resolution to obtain, own and operate an electrical utility pursuant to section 360 of the General Municipal Law.
Upon this appeal the respondent contends that the resolution as an implementation of section 360 of the General Municipal Law is actually a bond resolution subject to the restrictions of subdivision 1 of section 32.00 and subdivision a of section 165.00 of the Local Finance Law as being for a specific object or purpose and that funds may only be expended for such purpose. However, insofar as some defect in the expenditure or a bond resolution might be established in a proper case, there is nothing which could preclude condemnation pursuant to section 360 of the General Municipal Law.
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OPINION OF THE COURT
Herlihy, J.
As a preliminary matter it is noteworthy that a trial was held herein by stipulation of the parties to present evidence on both the issues of condemnation and temporary possession of property belonging to the respondent. It is solely those issues which are before the court upon this appeal.
On April 16, 1974, the plaintiff, an incorporated municipality, adopted a resolution authorizing it to own and operate an electric utility and further authorizing the issuance of $4,500,-000 serial bonds to finance the project. The resolution was approved by the eligible voters of the plaintiff at a mandatory referendum pursuant to section 360 of the General Municipal Law on May 30, 1974.
It is apparent from the record herein that the respondent is committed to the principle of resisting the effort of the plaintiff to replace it as the supplier and provider of electricity within the boundaries of plaintiff. This court has previously had the parties before it upon a petition of the respondent seeking review of a preliminary certificate issued by the Public Service Commission of the State of New York as required by section 5-a of the Condemnation Law upon the filing of a petition for a condemnation order in the County Court of St. Lawrence County on March 13, 1975 (Matter of Niagara Mohawk Power Corp. v Public Serv. Comm, of State of N. Y., 52 AD2d 388, app dsmd 40 NY2d 844).
Subsequent to the filing of the petition and an amended petition the respondent moved to dismiss the petitions upon various grounds, all of which were rejected by the court (Town of Massena v Niagara Mohawk Power Corp., 87 Misc 2d 79). Thereafter, the respondent on June 11, 1976 filed its answer to the petitions and the plaintiff renewed a motion for temporary possession. The court referred to its prior decision on the matter (id.) and adopted the factual findings made therein as the basis for the decision of most of the issues raised by the pleadings.
The court ascertained that the pleadings raised some six issues as follows:
(I.) Does the petition fail to set forth with specificity the property to be condemned?
[142]*142(II.) Did plaintiff fail to join a necessary person, the Marine Midland Bank, as a party in this action?
(III.) Did plaintiff adequately set forth in its petition the value of the property sought to be condemned, and did plaintiff negotiate with defendant in good faith for the purchase of such property?
(IV.) Is plaintiff able to complete the work or improvement for which the property is to be condemned and to provide the same for public use?
(V.) Does plaintiff’s proposed plan for providing service through a municipal electric utility system conform to and comply with the enacting resolution of the local legislative body?
(VI.) Is plaintiff entitled to grant of temporary possession?
The court in a seriatim determination of those issues found: (I) that certain specific items should be excluded from condemnation, but that the petition adequately specified the property to be condemned and was not jurisdictionally defective; (II) that the Marine Midland Bank as a mortgagee was not a necessary party to the proceedings and, accordingly, there was no jurisdictional defect in that regard; (III) that the petition adequately sets forth the value of the property sought to be condemned and plaintiff had negotiated in good faith for the purchase of the property with the further observation "that valuation must initially be determined by the commissioners”; and (IV) that insofar as the inability to complete the project is concerned, the ability "to pay the award and damages can only be resolved upon a determination by the commissioners” and further, that as a matter of proof, the failure of the plaintiff to have formal commitments from the Power Authority of the State of New York (hereinafter, Power Authority) or respondent as to the supply of power would not establish an inability to provide the service.
Upon this appeal the respondent in some of its many-faceted arguments urges that the trial court erred in determining certain of the foregoing issues; however, such suggestions are without any merit and those determinations are affirmed.
The sole determination against the plaintiff was that the proof established that it had "materially departed from both the authorized plan of acquisition (i.e., construction) and its formerly proposed method of furnishing service to customers of the municipal utility.” The court concluded "that the plans [143]*143for acquisition and method of providing service presently proposed so materially depart from those enacted by the Town Board and electorate that the petition for judgment of condemnation must be dismissed.”
The resolution1 of the plaintiff as approved at a referendum provided in its section 3 that the system was to be condemned from the respondent with construction thereafter of "a substation and transmission line”. In its section 4 it was proposed that service would be furnished by purchasing power from the Power Authority. It was also provided in section 4 that the [144]*144method of furnishing service would be ultimately by a direct link with the lines of the Power Authority, and in the interim by transmission over existing lines of respondent from the Power Authority.
The deviation consists of no present intention to construct separate facilities for a direct line with the Power Authority and now intending to furnish service solely by purchase of power from the Power Authority by transmission to town boundaries over incoming lines of the respondent. Section 360 of the General Municipal Law2 is the statute which controls the instant case (see O’Flynn v Village of East Rochester, 292 NY 156).
Upon this appeal there are presented the questions of whether or not an intended deviation from the original proposed method of acquiring property and furnishing the same would preclude condemnation and/or temporary possession; and further, whether or not in view of the proposals in the [145]*145resolution any change of intention as to furnishing service was so material as to defeat the purpose of condemnation.
The County Court did not set forth the reasoning whereby it would conclude that a departure would, as a matter of law, preclude the condemnation, but it did find that the original ordinance had been properly enacted. The record establishes that the proceeding was commenced pursuant to a valid viable and enforceable resolution to obtain, own and operate an electrical utility pursuant to section 360 of the General Municipal Law.
Upon this appeal the respondent contends that the resolution as an implementation of section 360 of the General Municipal Law is actually a bond resolution subject to the restrictions of subdivision 1 of section 32.00 and subdivision a of section 165.00 of the Local Finance Law as being for a specific object or purpose and that funds may only be expended for such purpose. However, insofar as some defect in the expenditure or a bond resolution might be established in a proper case, there is nothing which could preclude condemnation pursuant to section 360 of the General Municipal Law. Indeed, the said section 360 does not direct that bonds or any form of borrowing will be used, but only that the resolution and referendum must specify the costs. Section 362 of the General Municipal Law does provide that financing may be handled pursuant to the Local Finance Law, but it does not require that it be placed in the original authorizing resolution or passed upon by the required referendum.
Where the finances come from is in no way related to the Commissioners of Appraisal’s determination of values. The amount mentioned in the resolution was the "stop gap” which the voters authorized to be used to finance the property to be condemned. It would be entirely possible, following the condemnation award, to submit to the voters—assuming the award exceeded the amount mentioned in the resolution—a resolution authorizing the necessary additional funds required for the acquisition. It would be the voter’s ultimate decision.3
Accordingly, the contention that the provisions of the Local Finance Law would require a finding of a lack of authority to condemn property pursuant to section 360 of the General Municipal Law is without merit.
[146]*146Furthermore, it is clear that the goal of purchasing the municipal power from the Power Authority and transmitting it in the municipality over municipally owned and controlled lines is not being departed from. While at present there will no longer be the construction program originally intended, or envisioned, that program only relates to the tools of service and does not affect the fundamental concept of the system as not being one which would generate its own power. The proof as to costs by proceeding one way as opposed to another and the evidence relating to the desirability of one method versus another is interesting, but it has no relevancy to the purpose of this proceeding. While it is established that the members of the town board were acting according to a "plan” in drawing the resolution and proposing the method of acquiring power, the electorate voted upon the resolution and not each detail of a plan.
The finding in this case that there is a "material” deviation intended is without any substantial support in this record.
The present proceeding does not disclose that the property sought by condemnation will exceed the authority of the resolution as ratified in the referendum. As found by the trial court, the value of the property taken will be decided by the amount awarded by the commissioners. Whatever deviation is present in this case, or intended in the future from the resolution, there has been no showing that it could in any way have the legal effect of nullifying the power of condemnation as authorized in the resolution and referendum.
Upon this record there is no basis for denying the plaintiff the right to condemnation and temporary possession.
What is decisive here is that there is no material change or alteration in the purpose "establishment, ownership and operation of public utility” as authorized by the resolution submitted to and passed by the voters. There must, of necessity, be some flexibility in matters of such import especially in these days of inflation, spiraling costs of lands and material, and attorneys’ fees and expenses not contemplated resulting from a series of lawsuits. In sum, there may be changes, but the fundamental intent and purpose of the resolution may not be materially changed or altered.
Of course, the town in presenting its proof could have conformed to the terms and conditions of the original resolution, but nevertheless, the intention to own and operate its own public utility was not so materially altered or changed as [147]*147to violate section 360. To carry out its objectives, the manner of furnishing the electric current or the necessity of the substation was not so material in the context of the present litigation. The purpose of condemnation under the section remained substantially the same.
This being a case of first impression, it is our opinion under the factual situation herein that there has been substantial compliance with all of the terms and conditions of section 360 of the General Municipal Law.
The judgment should be reversed, on the law and the facts, with costs to plaintiff, and matter remitted to County Court with directions to grant the petition for condemnation and enter an appropriate judgment thereon together with the right of temporary possession in accordance with the Condemnation Law. The appeal from the order of May 17, 1977 should be dismissed as academic.