
    William M. Scott, Plaintiff, v. Charles. E. Twombly et al., Defendants.
    (Supreme Court,' Kings Special Term,
    July, 1897.)
    Villages — Issues of park bonds — Who are qualified to vote upon the question of issuing bonds.
    Where'a village issues.bonds in order to. acquire lands for. a'park, the bonds must be issued under the general act relative to villages. (Laws 1870, chap. 291. While authority for action in the matter is also found in the separate general acts (Laws 1888, chap. 525), authorizing villages to acquire lands for parks, the proposition that bonds be issued for such a purpose must, under the act of 1870', be voted upon at a regular or special village election, and by the provisions of section 13 of title 2 of that act, as amended in 1895, no person is entitled to vote upon the question, unless at the time when he offers his vote, either he or his wife is the owner of property assessed to him or to her upon the last preceding assessment-roll.
    Motion for a permanent injunction. Action by a taxpayer to enjoin the trustees of the village of Jamaica, Queens county, from putting in the tax levy and collecting a sum to pay the interest and principal of bonds issued to pay for land taken for a park for the village. The proposition to purchase and issue the bonds was submitted to a vote of the electors of the village generally at a special election called for the purpose by the trustees, and was carried by a majority of twenty-eight. One hundred and twenty electors who voted were not assessed for property on the last preceding assessment-roll, nor were their wives. The bonds were issued, falling due in installments each year for ten years. They were not sold, but taken by the seller of the property.
    Van Vechten & Delavan, for plaintiff.
    W. S. Cogswell and John Fleming, for defendants.
   Gaynor, J.

There is no provision in the special charter of the village authorizing what has been done. But by chapter 308 of the Laws of 1884, the powers conferred upon trustees of villages by the general village act, axe conferred upon the trustees of villages created by special charters, except in the particulars in which provisions of a special charter may conflict with the general act. We must therefore look to the general village act (chap. 291, Laws 1870), and the separate general act of 1888 (chap. 525), authorizing villages to acquire lands for parks, for authority to purchase this land and to issue the bonds in question therefor, and levy and collect the sums necessary to pay the interest thereon, and the principal, as they come due annually. The latter act does not authorize the issuing of bonds (Wells v. Town of Salina, 119 N. Y. 280), but we find that authority in the general village act. Sections 4 and 5 of title 4 thereof provide for the issuing of bonds for extraordinary expenditures after the proposition to do so shall be voted upon by ballot and carried at a regular or special election, by the electors “ entitled to vote on such questions.” By section 13 of ■title 2 (as amended in 1895), it is provided that no person shall vote at a village election upon a proposition to raise or appropriate a tax, • or to purchase property, unless at the time he offers his vote either he or his wife is “ the owner of property assessed. upon the last preceding assessment-roll.” .This is loose, but must mean assessed to’ him or her. The vote here was had at a special village meeting or election called for that purpose only. All electors were, permitted to vote irrespective of the said property qualification, and this, I think, makes the election a nullity. The case here is not the same as that of illegal votes east at an election of officers, and subject to the rules in respect to whether such an election shall he declared void or upheld. The object of this statute is that the proposition shall not be carried except by a majority of electors who, or whose wives, own assessed property, and that must appear by a comparison of the vote and of the poll-list with the last preceding assessment-roll. The number of illegal voters exceeds the majority by which the proposition was carried. It therefore does not affirmatively appear that a majority, of qualified electors voted “ Yes.” The. statute is to be construed in harmony with statutes authorizing towns, villages or‘school districts to bond themselves for railroads, or to make certain expenditures, upon' a vote of a majority of the. taxable inhabitants (People ex rel. Hitfield v. Trustees, 70 N. Y. 28; Smith v. Proctor, 130 id. 319), and in such cases it must appear affirmatively by a scrutiny of the poll-list and assessment-roll that a majority of the taxable -inhabitants voted yes. Here the taxpayers’ election required by law was neither held nor certified.

If the said act of 1888 should be held to authorize the issuing of bonds as well as the purchase of the land, nevertheless the vote of electors required by it means in' this case of such electors as may vote upon such propositions under the general village act.

By the special charter of this village, every inhabitant thereof qualified to vote for member of assembly is qualified to vote for all officers to he elected by virtue of this act, and upon questions which may he submitted by virtue of this áct to.the inhabitants of the village.” But this has no application, as the proposition voted upon at the election in question was not, and could not be, submitted under this act, hut was submitted under the act of 1888 and" the general village act, as we have seen.

I am constrained to grant the injunction.

Ordered accordingly.  