Village of Massena v. Lomenzo

New York Supreme Court

Village of Massena v. Lomenzo

58 Misc. 2d 40, 294 N.Y.S.2d 657, 1968 N.Y. Misc. LEXIS 1205

New York Supreme Court·Decided September 11, 1968·Published·Cited by 2 cases

Opinion

De Fobest C. Pitt, J.

The petitioner, Village of Massena, New York, seeks by this article 78 proceeding to compel the [41]*41respondent, Secretary of State, to accept for filing its Local Law No. 1, 1967. The local law in question consists of a complete revised charter, ordinances and local laws with repealers of all inconsistent ordinances and local laws then in effect. It appears to be a complete codification of all laws of the village. The respondent, in addition to answering the petition, has moved to dismiss the same for insufficiency.

The court is of the opinion that the petition should be dismissed. From a reading of the same it is obvious that the proposed law contains matters requiring either mandatory or permissive referenda and that more than one subject is covered. In the absence of referenda and by covering more than one subject it appears, that the law is not ready for filing. (Municipal Home Rule Law, §§ 20, 23, 24, 25, 26, 27; Matter of Astwood v. Cohen, 291 N. Y. 484.)

The court cannot agree that the Secretary of State may exercise no discretion in the filing of local laws so as to give rise to the unusual and drastic remedy of mandamus. (Matter of Noonan v. O’Leary, 284 App. Div. 646; Matter of Glen Cove Shopping Center v. Suozzi, 8 Misc 2d 247.) Having discretion in the matter and noting the above it may not be said that the refusal to file the local law was an arbitrary or capricious act. Accordingly, it is felt that the court should not intervene. Submit judgment dismissing the petition herein.

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De Fobest C. Pitt, J.

The petitioner, Village of Massena, New York, seeks by this article 78 proceeding to compel the [41]*41respondent, Secretary of State, to accept for filing its Local Law No. 1, 1967. The local law in question consists of a complete revised charter, ordinances and local laws with repealers of all inconsistent ordinances and local laws then in effect. It appears to be a complete codification of all laws of the village. The respondent, in addition to answering the petition, has moved to dismiss the same for insufficiency.

The court is of the opinion that the petition should be dismissed. From a reading of the same it is obvious that the proposed law contains matters requiring either mandatory or permissive referenda and that more than one subject is covered. In the absence of referenda and by covering more than one subject it appears, that the law is not ready for filing. (Municipal Home Rule Law, §§ 20, 23, 24, 25, 26, 27; Matter of Astwood v. Cohen, 291 N. Y. 484.)

The court cannot agree that the Secretary of State may exercise no discretion in the filing of local laws so as to give rise to the unusual and drastic remedy of mandamus. (Matter of Noonan v. O’Leary, 284 App. Div. 646; Matter of Glen Cove Shopping Center v. Suozzi, 8 Misc 2d 247.) Having discretion in the matter and noting the above it may not be said that the refusal to file the local law was an arbitrary or capricious act. Accordingly, it is felt that the court should not intervene. Submit judgment dismissing the petition herein.

Village of Massena v. Lomenzo, 58 Misc. 2d 40, 294 N.Y.S.2d 657, 1968 N.Y. Misc. LEXIS 1205 (N.Y. Super. Ct. 1968).

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