
    The People of the State of New York on the Relation of John J. O’Neill, Plaintiff, v. William D. Hill, Defendant.
    Second Department,
    June 24, 1940.
    
      
      Arthur D. Brennan [Chester A. Slocum and James D. Hopkins with him on the brief], for the plaintiff.
    
      I. Maurice Wormser, for the defendant.
   Per Curiam.

Submission of a controversy in the nature of a proceeding in quo warranto, with the formal consent of the Attorney-General of the State of New York, under sections 546-548 of the Civil Practice Act, in relation to the office of assessor of the village of Port Chester.

For the reasons indicated in part in the decision in People ex rel. Goldowitz v. Karnes (259 App. Div. 110), decided herewith, the purported appointment of the defendant at the meeting of the trustees on April 29, 1940, was invalid. No quorum was present at that meeting because the mayor is not a trustee and may not be counted to make a quorum. Section 3 of title III of the Charter of the Village of Port Chester provides that "A majority of the trustees shall constitute a quorum * * There were but

three trustees present at the April 29, 1940, meeting and, therefore, there was no quorum.

The appointment of the plaintiff at the meeting of May 1, 1940, was valid, all of the trustees, six in number, being present, and four voting for the appointment of the plaintiff.

Judgment directed for the plaintiff, as the duly appointed assessor for the year beginning May 1, 1940, without costs.

Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.

Judgment unanimously directed for plaintiff, without costs.  