
    In the Matter of the Petition of The Village of Le Roy. Le Roy Gas Light Company, Appellant; The Village of Le Roy, Respondent.
    
      Village — condemnation proceedings instituted under chapter 680, Laws of 1894— they must he continued under that act, although not finished until after its repeal— costs.
    
    Proceeding's instituted under chapter 680 of the Laws of 1894, by a village, to condemn the property of a gas light company, should be continued and completed in accordance with the provisions of that, act by virtue of the authority conferred by section 31 of chapter 677 of the Laws of 1892, although the proceedings are not finished until after July 1, 1897, when chapter 414 of the Laws of 1897, repealing the act of 1894, took effect.
    The costs on an application for “an abandonment and discontinuance of the proceedings” are regulated by section 3874 of the Code of Civil Procedure.
    Appeal by the Le Roy Gas Light Company from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Genesee on the 20th day of May, 1898, setting aside, annulling and declaring void an order or judgment granted on the 18th day of November, 1897, at the Erie Special Term, entitled “ In the Matter of the Proceedings of the ■ Village of Le Roy to acquire land and property of the Le Roy Gaslight Company by condemnation,” and all proceedings upon which the same was based, except from that portion thereof relating to the terms and conditions upon which said order is granted.
    
      George Bowen, for the appellant.
    
      William F. Cogswell, for the respondent.
   Hardin, P. J.:

The order brought here for review set aside proceedings instituted by the respondent under chapter 680 of the Laws of 1894, which was in force in June, 1897, when the proceedings were commenced, although that chapter was repealed by chapter 414 of the Laws of 1897, which took effect July 1, 1897. Notwithstanding the repeal, the proceedings might be continued (if properly brought) to a final determination in virtue of section 31 of chapter 677 of the Laws of 1892. That section provides that all actions and • proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed.” (See p. 1492, vol. 2, Laws of 1892.)

The petition signed by Maloney and Lowe, water and light commissioners, verified June 5,1897, presented to the court for the condemnation of the property described therein, to wit, the gas light company, referred to an election purporting to have been held under chapter 680 of the Laws of 1894. The court acted upon that petition and appointed commissioners to appraise the property of the appellant, and the order approving the award of the appraisers purported to be made in virtue of the provisions of the act of 1894. It was assumed that the election provided for in section 5 of the act of 1894 had been held and authority given to take condemnation proceedings by the electors of the village of Le Roy. That section (5) provides: “No village shall establish a lighting system as provided by this act until the proposition be submitted to popular vote at an annual or special election.”

The title of chapter 680 of the Laws of 1894 was, viz.: “ An act to authorize the villages of the State of New York to furnish electric light or gas light to the inhabitants thereof.”

The 1st section confers upon boards of water commissioners power to establish a lighting system within said village, for the purpose of supplying light, hy means of electricity, gas or other approved system, to the inhabitants of said village.”

The 2d section provides for the issue of bonds to “ procure the necessary funds for establishing such lighting system ; * * * ”

Section 3 of the act provides that water commissioners “ shall have power to establish and maintain such lighting system to suprply the inhabitants with light * *

The 5th section limits the right and power to “ establish a lighting system” as provided by the act, and declares that no such system shall be established “ until the proposition be submitted to popular vote at an annual or special election.”

The statute also declares that “At such election the ballots shall be for a lighting system ’ or 1 against a lighting system.’ ”

Subsequent proceedings to establish a lighting system are only authorized when a majority of votes cast be in favor “ o.f a lighting system.” The power to take condemnation proceedings is conferred in section 6, and is to be used only in case “ a majority of the voters of such village voting * * * decide to establish a lighting system.”

Was the election held and were the ballots used in accordance witli the provisions found in section 5 of the act ? Doubtless the parties who prepared the ballots used sought to apply the provisions of section 82, chapter 909 of the Laws of 1896, to the election held. That statute does not repeal chapter 680 of the Laws of 1894; therefore, the latter statute must be followed in order to effectually derive the power given by its provisions. (Village of Harrisville v. Lawrence, 66 Hun, 303: Matter of Taylor, 3 App. Div. 244; S. C. affd., 150 N. Y. 242.)

The ballots used were in the following form:

“ (Notice to voters. For an affirmative vote upon any question submitted upon this ballot make a cross (X) mark in the square after the word ‘ Yes.’ For a negative vote, make a similar mark in the square following the word £ No.’ Any mark or erasure made on this ballot, except as above indicated, makes this ballot void, and it cannot he counted. -Use only a pencil having black-lead.)
“ Shall the taxes authorized in chapter 680 of the
Yes
No
Laws of 1894, entitled ‘An act to authorize the villages of the State of New York to furnish electric light or gas light to the inhabitants thereof ’ for the purpose specified in said act, be levied and collected from the village of Le Roy, New York, as in said act provided ? ”

The statute of 1894 does not provide for submitting any question as to taxes. It provides, as stated, that the electors shall declare by ballot either “ for a lighting system ” or “against a lighting system.” Upon the face of the ballot the words “ lighting system ” do not appear. In the act of 1894 there is no provision for submitting the proposition or question stated upon the ballots used. The electors did indicate by the ballots used by a majority of thirty-five a willingness that taxes be levied and collected in the village of Le Roy authorized by the act of 1894, but they did not indicate or authorize the establishment of a lighting system for the village. The precise question which the statute of 1894 provided should be submitted was not voted upon. Hence, the provision of the statute, that until the proposition named in the act shall be submitted “ no village shall establish a lighting system,” controls and restricts the village and all of its officers. This being so, it is not needful to consider any question of estoppel or waiver raised by the appellant’s argument. The petition for the condemnation was without authority and conferred no jurisdiction upon the court to appoint commissioners of appraisal or to entertain the further proceedings.

Chapter 551 of the Laws of 1897 does not ratify the proceedings • had under the act of 1894.

Inasmuch as the court acted upon the assumption that the act of 1894 iiad been complied with, and such was not the fact, the proceedings for condemnation were without authority of law. Indeed, tlie3r were a violation of the provisions found in the act.

It is contended that the court had no power upon motion to set them aside. The power of the court over its judgments and proceedings is one that is important and has been exercised in numerous cases. (IIatch v. Central National Bank, 78 N. Y. 487; Underwood v. Sutcliffe, 21 Hun, 357, 362; Kiefer v. The Grand Trunk Railway Company, 28 N. Y. St. Repr. 474; Van Denburgh v. The Mayor, Id. 580; Eighmie v. Taylor, 39 Hun, 367; Naughton v. Vion, 91 id. 362; Vanderbilt v. Schreyer, 81 N. Y. 646; Ladd v. Stevenson, 112 id. 326.)

The application at Special Term was not to declare the proceedings abandoned ; it was to set them aside as having been made without authority or in violation of law.

Section 3374 of the Code of Civil Procedure regulates the costs upon an application for an “ abandonment and discontinuance of the proceeding.”

The foregoing views lead to an affirmance of that part of the order appealed from.

Follett and Adams, JJ., concurred; Ward, J., dissented.

So much of the order as is appealed from affirmed, with ten dollars costs and disbursements against the appellant.  