
    Lawrence A. Baker et al., Appellants, v. Stephen L. Marley et al., Respondents.
    Argued October 13, 1960;
    decided November 30, 1960.
    
      Edward B. Neaher for appellants.
    I. Section 332 of the Village Law unconditionally prohibited defendant Mayor’s participation in the resolutions and official actions complained of. 
      (Smith v. City of Albany, 61 N. Y. 444; People ex rel. Schenectady Illuminating Co. v. Board of Supervisors of County of Schenectady, 166 App. Div. 758; Matter of Clarke v. Town of Russia, 283 N. Y. 272; Matter of Jackson, 231 App. Div. 838; Matter of Moran, 145 App. Div. 642; Heughes v. Board of Education, 37 App. Div. 180; Beebe v. Board of Supervisors of Sullivan County, 64 Hun 377, 142 N. Y. 631; Matter of Village of Monticello, 123 Misc. 556.) II. The village hoard’s resolutions and actions in which the Mayor took part contrary to section 332 are wholly illegal and void. (Miller v. Ammon, 145 U. S. 421; Pyatt v. Mayor & Council of Dunellen, 9 N. J. 548.) III. Defendants ’ documentary evidence did not establish a complete defense, as a matter of law, entitling them to summary judgment. (O’Mara v. Dentinger, 271 App. Div. 22; Beekman v. Frost, 18 Johns. 544; Massachusetts Nat. Bank v. Shinn, 163 N. Y. 360; Leahy v. Brooklyn Waterfront Term. Corp., 272 App. Div. 781; Curry v. Mackenzie, 239 N. Y. 267; Odell v. Town of Carmel, 8 N Y 2d 743; Matter of Incorporated Vil. of Hempstead, 207 Misc. 402.)
    
      Douglas E. Dayton and Richard B. Lillich for respondents.
    I. The Mayor has not acted ‘ ‘ as such in any matter or proceeding-involving the acquisition of real property then owned by him for a public improvement ”. (People ex rel. Mershon v. Shaw, 34 App. Div. 61; Holy Trinity Church v. United States, 143 U. S. 457; Brustein v. New Amsterdam Cas. Co., 255 N. Y. 137; Cluett, Peabody ds Co. v. J. W. Mays, Inc., 5 A D 2d 140.) II. Neither common law nor statute disqualifies the Mayor from acting in this ease. (Wilcox v. Royal Arcanum, 210 N. Y. 370; Matter of Hicks Development Corp. v. Incorporated Vil. of Lawrence, 282 App. Div. 1048, 306 N. Y. 922; Ambassador Management Corp. v. Incorporated Vil. of Hempstead, 186 Misc. 74, 270 App. Div. 898, 296 N. Y. 666, 330 U. S. 835; Matter of Incorporated Vil. of Hempstead, 207 Misc. 402; Smith v. City of Albany, 61 N. Y. 444; People ex rel. Schenectady Illuminating Co. v. Board of Supervisors of County of Schenectady, 166 App. Div. 758; Matter of Clarke v. Town of Russia, 283 N. Y. 272; Kaskel v. Impellitteri, 306 N. Y. 73; Stahl Soap Corp. v. City of New York, 5 N Y 2d 200.) III. If the Mayor’s actions are deemed improper, this would not vitiate the acts of an otherwise duly constituted quorum. (People ex rel. Kingslander v. Palmer, 52 N. Y. 83.) IV. Appellants state no cause of action under section 51 of the General Municipal Law. (Rogers v. O’Brien, 153 N. Y. 357; Altschul v. Ludwig, 216 ,N. Y. 459; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202.)
   Burke, J.

The defendant Marley, Mayor of the Village of East Hampton, Long Island, participated in meetings of the Board of Trustees which adopted resolutions leading to the condemnation of various parcels of real property, including one owned by the Mayor and others.

The plaintiffs ’ complaint, filed in an action brought under the provisions of section 51 of the General Municipal Law to have the resolutions declared void, has been dismissed.

The legality of the board’s actions depends on the applicability of section 332 of the Village Law. That section provides, inter alia, that a village official shall not act as such in any ‘ ‘ matter or proceeding involving the acquisition of real property then owned by him for a public improvement ’ ’. The Appellate Division held that the section was inapplicable to the actions of the board since they were merely preliminary to ‘ ‘ the technical commencement, as defined in the statute, of a proceeding to acquire real property for a parking lot ”.

We read the statute differently. The term “matter or proceeding ’ ’, in our opinion, embraces the acts which the Board of Trustees performed in connection with the condemnation proceedings. These actions included the authorization of preliminary studies, surveys and estimates, the determination of the manner in which the property would be taken, the fixing of compensation, the distribution of the cost, the approval of the acquisition map, and the specification of assessment areas. Each of these decisions of the board involved the Mayor in conflicts of interest which the Legislature intended to prevent. The participation of the Mayor was a violation of the statute, consequently the resolutions and acts of the board were illegal (cf. Matter of Clarke v. Town of Russia, 283 N. Y. 272). In such a case, “ [p]ublic policy forbids the sustaining of municipal action founded upon the vote of a member of the municipal governing body in any matter before it which directly or immediately affects him individually” (Pyatt v. Mayor & Council of Borough of Dunellen, 9 N. J. 548, 557). Therefore, the resolution and other actions of the board relating to the condemnation must be declared void, even though the vote of the Mayor was not necessary, a majority being sufficient (Beebe v. Board of Supervisors of Sullivan County, 64 Hun 377, affd. 142 N. Y. 631).

The judgment should be reversed, with costs in all courts, and defendant’s motion for summary judgment denied.

Van Voorhis, J. (dissenting).

It seems to me that the Appellate Division was right in construing section 332 of the Village Law, under the circumstances of this case, so as not to prevent the making of what is apparently a desirable public improvement. The ownership by the Mayor of an interest of less than 1% in the property to be condemned for a municipal parking lot was accidental, and he has agreed to donate to the village the approximately $253 which would otherwise be coming to him on account of the public talcing of this property. The circumstance that he had this small interest is evidently being utilized by persons who wish to block this project for other reasons. A majority of the Village Board have voted in favor of it without counting the vote of the Mayor, his slight personal interest was wholly coincidental, and he agrees to make a present to the village of whatever ownership he has in this parcel. It is usually regarded as desirable for local public officers to have some stake in their communities. Nobody contends that the slight interest of the Mayor of Bast Hampton has influenced the undertaking of this project, which has been authorized and approved by the other members of the board. The dismissal of the complaint should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel and Foster concur with Judge Burke ; Judge Van Voorhis dissents in a separate opinion.

Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.  