
    Union Free School District No. 1 of the Towns of Brownville and Pamelia, Respondent, v. The Village of Glen Park and, Others, Appellants.
    Fourth Department,
    November, 1905.
    Consolidated School Law — when village cannot withdraw from union free school district—when such school district cannot enjoin the withdrawal of a village.
    A union free school district, though a municipal corporation entitled to sue, can only maintain actions relating’ to its functions. Hence an action by such school district does not lie to enjoin the withdrawal of a village from the district, although such withdrawal he unauthorized, because such withdrawal, when it does not interfere.with or appropriate the school buildings or property of the district, only imposes an additional burden upon the taxpayers of such district, of whose interest the school district is not the .guardian.
    
      If seems, however, that the fight of ’a village to reduce its boundaries under the provisions of the Laws of 1903, chapter 606, cannot be exercised by .a village in a county which has adopted the system of highway improvement authorized by Laws of 1898, chapter 115, even though the purpose be' to separate from a ’ union free school district and erect a distinct school district.
    Appeal by the defendants,, the Tillage of Glen Park and others, from a judgment of the Supreme Court in favor of the plaintiff, "entered in the office' of the clerk of the county of Jefferson on the-17th day of December, 1904, upon the decision of the court, rendered after a trial at the Jefferson Special Term, granting an injunction and other relief.
    
      I. R. Breen, for the appellants.
    
      George H. Cobb, for the respondent.
   Spring, J.:

The plaintiff is a union free school, district embracing all. the village of Brownville,. a part of the towns" of Brownville and Pamelia, and also a part of the "village of Glen Park. The village of Brownville contains the larger population and more than .three-fourths of the. children of school age. The village of Glen Park contributes the greater sum to the maintenance of the school dis-’ triet, as its assessed valuation is ’the greater. Seven-eighths pf its ’. assessable property, however, is owned by non-residents of the village and district. The district has maintained a school in each village but the school building in Brownville is insufficient for the accommodation of the children in attendance. In 1903 the qualified voters of the district at a meeting duly called carried a resolution to raise the sum of $12,000 to purchase a site near the boundary line separating the two villagés and erect a building thereon for the convenience of the' academic pupils of the district. The site was determined upon, its purchase was authorized and a contract therefor has been entered into but no purchase money has been paid and no bonds issued as prescribed in the resolution of the board.

The citizens of Glen Park desired to withdraw from the plaintiff and maintain a separate school district. Inasmuch as the limits of the village exceeded the limits of the plaintiff it was necessary before this could be done that the village of Glen Park should diminish its boundary lines so as to place itself in a position to secede from the plaintiff in accordance with chapter 125 of the Laws of 1903, which provides that in any union free school district which comprises territory of two or more incorporated villages, the board of trustees of any village whose entire territory is within said school district may call ,a special meeting of the voters duly qualified under the Consolidated School. Law to' vote at a school meeting, to determine whether that portion of said school district comprising the said village shall be separated from the school district and be a separate union free school district with limits corresponding with the limits of such village. .

The first step, therefore, in this procedure to secure the secession' from the school district was to reduce the boundary lines of the village of Glen Park to correspond with the school district lines. The authority for this procedure is found in chapter 606 of the Laws of 1903 (adding to Village Law [Laws of 1897, chap. 414], § 326a), which provides that under certain circumstances a village may reduce its boundaries, provided, however, that this section shall not apply to any county in" the,State which has adopted or may hereafter adopt the system of highway improvement under chapter one hundred and fifteen of the laws of eighteen . hundred,and ninety-eight, or the acts amendatory thereof” This last reference is to the Higbie-Armstrong Act for improvement of highways. Ah this latter statute (§ 1) especially excludes incór- , porated villages from its scope it is not easily discernible just why there should be a prohibition of the'diminution of village boundaries in the statute of 1903, for the rejected territory would come .within"the purview of the law of 1898, as amended, but wé have^ no concern with the reason for the .provision. The court has found upon proof fully justifying it that the county of Jefferson has adopted the road improvement system referred to.

The voters of Glen Park in order to carry out their scheme of secession duly voted to diminish the boundaries of the village ' and then proceeded pursuant to chapter 125 of the Laws of. 1903 to separate the village from the plaintiff in order to" erect a. distinct union free school district, when they were temporarily enjoined from the further prosecution, of the undertaking pending this action.

The plaintiff has obtained a judgment in accordance with the allegations, of its complaint declaring that the acts of the defendants in diminishing the boundaries of the village of Glen Park are illegal, and a permanent injunction has been granted restraining the defendants from dividing said school district. The facts above enumerated are undisputed and authorize the judgment awarded except that we are led to the conclusion that the plaintiff has not the. legal capacity to maintain the action.

The plaintiff is a municipal corporation (Gen. Corp. Law [Lawof 1892, chap. 687], § 3, subd. 1, as amd. by Laws of 1895, chap. 672) .and may maintain an action in its corporate capacity. (Bassett yr.*Fish, 75 FT.. Y."303; State Const, art. 8, § 3.)

The authority to sue, however, must, be construed in the light of the particular functions within the purview of the plaintiff and its officers. . If the secession of Glen Park- is accomplished, the integrity of the plaintiff still remains.. The property of the 'district is not interfered with. • The school building and whatever other property the district itself owns is within the dominion of- the board' of education of the district. If there is. any trespass upon that property an action would probably lie by the district or its board of education to recover damages, or if equitable relief were proper that form of action might be resorted to. But the damages in the event of the division of the district fall Upon the taxpayers, not the district as a distinct entity. As to any existing indebtedness against the district, section 5 of chapter 125 of the Laws of 1903, already referred to, provides for its apportionment between the respective districts, and this section also prevents the rights of obligees being imperilled by the division of the district. The plaintiff by its officers is not the guardian of either the taxpayers or the obligees of the district. While the board of education has charge of the property of the district outside of its restricted domain, its members are not the sponsors of the people of the district or legally authorized to interfere by action, even though the tax burden may be increased "upon the property of the taxpayers remaining by reason of the unauthorized withdrawal of Glen Park. The property owned by the district, not being subject to taxation, is not affected by the. abridgment of i'ts boundaries.

The Legislature in 1898 (Chap. 576) authorized and directed'tile school commissioner of the third commissioner district of the comity of Westchester to enlarge the boundaries of Union Free School District No. 7 of the town of Oortlandt, in Westchester county, prescribing the territory, which was to be added, and it included a part of district No.. 6. There were obligations existing against district No. 6, and its board of education commenced an action against the board of education of district No. 7, assailing the legality of the act under which the district was about to be deprived of a portion of the territory embraced within its limits. It was held on demurrer to the complaint that the action Was not maintainable by the plaintiff, as its property was not affected. (Board of Education v. Board of Education, 76 App. Div. 355 ; affd., 179 N. Y. 556, without opinion.) We think that Case is decisive of the present one.

The proof in. this case shows that in the village of Brownville there was á school building in which six teachers were employed and academic subjects were taught. The - proof also shows that in the village of Glen Park, there is a building with three rooms, in which three teachers were employed. There is nothing.in the evidence to show that the latter building is owned by the district, or if so, that it is to be retained by the newly-organized 'district. . The action is not brought'upon the assumption that, the defendants-are taking from the plaintiff the. school building of the district, which is situate in Glen Park,, or despoiling it of . its property . The gravamen of the action is .that the attempt to diminish the boundaries of •the district was unauthorized and; that the .plaintiff by virtue of iis general corporate power and as the representative of the taxpayers has á right to• resist the alleged usurpation of power by the defendants.

The judgment should be reversed,"with costs and disbursements of this appeal to the appellants,' and judgment ordered in favor of "the defendants dismissing the complaint, with costs. ■

All concurred.

Judgment appealed from reversed, with costs to the appellants, and judgment ordered in: favor of the defendants, dismissing the. complaint, with costs, 
      
       See Laws of 1894, chap. 556, tit. 8, § 8, as amd. by Laws of 1896, chap. 364. -7 [Kep.
     