
    The Town of Oyster Bay and Samuel J. Underhill, Supervisor of said Town, Plaintiffs, v. Norman W. Harris and Others, Constituting a Partnership Firm under the Firm Name and Style of N. W. Harris & Co., Defendants.
    
      Town bonds —provisions of the Town Law by which taxpayers may demand that the question of a public improvement, involving the issue of town bonds, shall be voted, upon by the electors at a town meeting, when not complied with.
    
    The provisions of the Town Law (Laws of 1890, chap. 569, art. 2, § 84) to the effect that “No proposition, or'other matter than the election of officers, shall he voted upon hy ballot at any town meeting, unless the town officers or other persons (twenty-five taxpayers whose names appear upon the last town assessment roll) entitled to demand a vote of the electors of the town thereon, shall, at least twenty days before the town meeting, file with the town clerk a written application, plainly stating the question they desire to have voted upon, and requesting a vote thereon at such town meeting,” are not complied with where it appears that a sufficient number of qualified persons signed a paper, denominated a “ resolution,” which recited that a certain sum should be raised on the ■ faith-and credit of the town by an issue and sale -of its bonds, and that the money raised and its interest should be charged upon .the property of the town taxable therefor, for the purpose of grading arid paving certain roads, these being stated as well as the tenor of the bonds—the paper not being addressed to any person, body or officer, and not stating any question which the signers desired should be voted upon, or requesting that any vote be taken thereon at a town meeting, and the signers, although taxpayers, not being described as such.
    A purchaser, who has contracted to buy bonds of the town issued upon the faith of this “resolution,” will not be compelled to complete his purchase.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      George W. Davison, for the plaintiffs.
    
      Harry Hubbard, for the defendants.
   Hatch, J.:

The determination of the submitted controversy involves the legality of certain bonds issued by the town of Oyster Bay for a public improvement, and contracted to be sold by the supervisor of said town, acting under the authority of the board of supervisors of the county of Queens, to the firm of N. W. Harris & Co., whose members are the defendants in the action. The case shows that the defendants refuse to carry out their contract for the purchase of the bonds, upon the ground that they were issued without authority of law, and are void.

The defendants urge three specific defects in the proceedings leading up to the issue of the bonds, which they regard as fatal to their validity. In the view we take of this case, it does not become necessary that we should consider- any objection except the first, which lies at the threshold of the controversy. This objection is' formulated by the plaintiffs in these words: “ That the petition presented does not comply with Section 34 of the Town Law, and the matter was improperly submitted to a vote.” Section 34 of the statute above referred to, so far as important, reads :No proposition, .or other matter than the election of officers, shall be voted upon by ballot, at any town meeting, unless the town officers, or other persons entitled ‘to demand a vote of the electors of the town thereon, shall, at least twenty days before the town meeting, file with the town clerk a written application, plainly stating the question they desire to have voted upon, and requesting a vote thereon at such town meeting.” (Chap. 569, Laws of 1890, art. 2, § 34.) The persons entitled to demand a vote of the electors are such persons as are mentioned in section 25 of the aforementioned law, and consist of twenty-five taxpayers whose names appear upon the last town assessment roll. There was evidently an attempt upon the part of a sufficient number of taxpayers of the town to set' in motion proceedings by which a vote might be taken authorizing ail expenditure of money for public improvements, and under which the aforementioned bonds were issued. This took the form of a paper, which plaintiffs insist was an application in compliance with section 34, and lawfully instituted the proceeding. This paper is signed by forty-one persons, who are certified by the town clerk of the town of Oyster Bay as being taxpayers then appearing upon the last assessment roll of the town. The paper is denominated in the case as “Resolution No. 1.” So far as important, it reads : “Resolved, That the sum of ($300,000) three hundred thousand dollars be raised on the faith and credit of the Town of Oyster Bay by an issue and sale of bonds of said town, the money so raised and the interest thereon to be a charge upon the property of the town taxable there^ for, for the purpose of grading and improving the following roads in the Town of Oyster Bay, and laying telford and macadam pavement thereon.” Then follows a long list of the roads and places to be improved; and provision is made for the denomination of the bonds, the rate of interest, date of payment, and for a tax to meet the same. Then follow the signatures of the taxpayers, although nowhere in the paper are they stated to be such. It is quite evident that this paper does not comply with the statute. It does not, at least in form, purport to be an application. It is not addressed to any person, body or officer. It does not state any question which the persons signing, or any one else, desires to have voted upon. ‘Nor does it request that a vote thereon be taken at a town meeting. All of these matters the statute requires.- The only thing about this paper which in .anywise conqffies with the statute is that it is signed by the required number of taxpayers. Certain things are resolved upon, but by whom is not stated. No question is formulated, nor is it requested that the resolution shall be submitted to a vote either at the ensuing town meeting or any other. No body or officer is requested to do anything. No desire is expressed, and so far as the paper, standing alone, is concerned, it expresses nothing, except a resolution signed by certain persons. It would have been quite as competent as a document to be acted upon, if the persons had signed their names to a blank piece of paper and filed it with the board, or have filled in the blank with a' resolution to support certain named candidates for office. If a question could be spelled out from the paper, and a desire was expressed to have a vote at a town meeting taken ■ and a request made therefor, however inartificially such facts were made to appear in the paper itself, it might be held a sufficient compliance with the. statute to set the town board in motion, or to uphold its action if it assumed to act thereon. But the difficulty with the situation is that nothing..appears, either in form or substance, as required by the statute; consequently it cannot be treated as an application at all.. Under the decisions in the railroad bonding case, of which Town of Mentz v. Cook (108 N. Y. 504) is an illustration, this paper would be held to confer no jurisdiction upon which action could be based. While we have held that there is a radical distinction between the creation of a debt for railroad purposes and one for general improvements (May v. Bermel, 20 App. Div. 53), yet we have not gone so far as to hold that we can support a proceeding where there has been no compliance, with statutory requirements. The most that can be done is to give effect to acts showing a substantial compliance with the statute, even though form may have been disregarded. This proceeding cannot be helped out by anything the town board did. Neither their minutes nor anything else shows that they acted upon the paper above adverted to, or upon the request of any one. They voted simply to submit'certain resolutions to the town meeting to be held o.n April 6, 1897, which in form were the same as those stated in the paper submitted to them. But they did not assume to act upon the request of any one, and they were not so authorized to act except upon a request in writing, stating the facts to which we have called attention. And no such request, as we have seen, was made.' The board, for aught. that appears, may have acted upon their own motion. It is quite as probable that they did this as that they acted upon request. If so, their act cannot be upheld, as essential requirements of the statute were not observed to make such an' act effectual. It is not now needful that we point out wherein and how they failed in this respect. • The most that we can say, rather infer, is that the persons who signed the paper intended thereby to have a vote taken upon the resolutions therein set out, and that they filed them in the town clerk’s office, and that the town board assUmed to act thereon. But this does- not aid to a compliance with a substantive part of the statute, and the board was only authorized to act on request upon such compliance. It follows, therefore, that the act of the- board in- submitting stick resolutions to a vote was without authority of law and void, and all acts based thereon fall with this.

Other serious questions are raised, but we do not deem it necessary to discuss them.

Judgment upon the submitted case should -be- ordered in favor of the defendants.

All concurred. •

Judgment ordered for defendants on agreed statement of facts.  