
    James Aquavella et al., Appellants, v. Frank Lamb et al., Constituting the Common Council of the City of Rochester, Respondents.
   Order unanimously reversed, without costs of this appeal to any party, and judgment directed in accordance with memorandum. Memorandum:. A three-fourths vote of the entire membership of the Common Council of the City of Rochester was required to enact the amendment to the ordinance in question here to effect compliance with the provisions of section 83 of the General City Law. Such a vote was lacking at the time the amendment was voted on at the Council meeting of August 26, 1965. While the complaint and petition seek a declaration only as to the meeting of August 26. in view of the extension of the issues by the parties to include the action of the Council taken at the meeting of September 14 and the consideration of those issues by Special Term, such issues may be disposed of by this court on this appeal. With regard to the action of the Council at its meeting of September 14, 1965 assigning complete accuracy to petitioners’ version of the voting procedure followed it would appear a vote was taken on the ordinance for which reconsideration was sought and reflects the will of a three-fourths majority of the entire Council to secure its enactment. There being no issues of fact to be resolved and it appearing the allegations of the petition and affidavits submitted establish a proper basis for a declaration as to the validity of the ordinance as amended, the order of Special Term should be reversed and judgment entered declaring that the action of the Common Council of the City of Rochester, New York, on August 26, 1965 purporting to amend section 91-9 of the Municipal Code of the City of Rochester, New York, was invalid and ineffective to secure its enactment and further that the amendment to the “R-4” zoning ordinance amending section 91-9 of the Municipal Code of the City of Rochester, New York, was properly passed and enacted into law by the Common Council of the City of Rochester, New York, by a vote taken on September 14, 1965 and that said amendment is legal and valid in all respects. (Appeal from order of Monroe Special Term declaring an ordinance valid and dismissing petition and restraining order.)

Present — Williams, P. J., Bastow, Goldman, Del Veechio and Marsh, J J.  