
    Union Free School District No. 4, Town of Orangetown, County of Rockland, Plaintiff, v. Paulinus L. Grear, James S. Otis, doing Business under the Name of Otis Engineering Company; A. D. Granger Company, and Edward E. Joralemon, the Name “ Edward ” being Fictitious, said Defendant’s Real Christian Name being Unknown to Plaintiff, Defendants. William S. Edwards, Plaintiff, v. The Board of Education, Union Free School District No. 4, Orangetown, Rockland County; Paulinus L. Grear; A. D. Granger Company; James S. Otis; E. E. Joralemon, Defendants.
    (Supreme Court, Westchester Special Term,
    January, 1908.)
    Common schools: Officers — Authority of trustees to contract: Taxes — Construction and operation of votes or resolutions — Tax to erect addition to school building.
    Where the voters of a school district authorized the board of education to erect an addition to the present school building at a cost not to exceed a certain sum to be raised by tax, the board could not lawfully make contracts providing, at a cost of more than one-third the entire sum, for alterations in the existing school house, so extensive and radical in their nature as to constitute a remodeling of the entire interior of the existing building.
    . Action to restrain defendants from carrying out an alleged contract for alterations to the school building in district üSTo. 4, Orangetown, Rockland county.
    J. duPratt White, for the plaintiff, the School District.
    
      George A. Wyre, for the plaintiff, Edwards.
    Charles S. MacKenzie, for the defendants Grear and Joralemon.
   Mills, J.

The above two actions involve substantially the same questions and by stipulation of counsel were tried together at Special Term.

It is conceded by all parties that'the only authority of the board of .education to do the work which it has undertaken to do, and to raise money therefor by levying a tax and issuing bonds, is the resolution passed by the special meeting of the voters of the school district held April 11, 1907, by virtue of the power conferred by section 10 of. the Consolidated School Law. Said resolution reads as follows :

Resolved, that the Board .of Education *' * * be and it is hereby authorized to erect an addition to the present school 'building on Depew Avenue * * * at a cost of not to exceed $75,000; and that to pay for the cost of said addition * * * the sum of $75,000 be raised by tax,” etc.

Under the authority conferred by such resolution the board of education has undertaken to enter into contracts for the expenditure of a few hundred dollars more than the entire sum of $75,000 appropriated, in constructing an addition to the present school-house and in making alterations in the same. Such alterations provided for by the contracts amount in cost to approximately $3"0,000, or more than one-third of the total appropriation, and are so extensive and radical in their nature as to constitute a substanti al remodeling of. the entire interior of the present school building."

The sole question presented for determination here is this: Has the board, under such resolution, the power to make such alterations and to expend therefor a substantial portion of the appropriation made by the resolution?

After careful examination of the- very complete briefs submitted, and consideration of the matter, I am reluctantly convinced that the board has no such power. The authority given by the resolution was merely “ to erect an addition to the present school building.” It did not include the making of substantial alterations of such large proportionate cost in the present building; although it might be held to include alterations therein, incidentally necessary to connect the addition with the old building so that the same might be used therewith. It seems to me that in equity as well as "in exact right the. voters of the district are entitled to vote upon the proposition to so substantially alter the existing building at such very considerable cost.

The case of Lawson v. Lincoln, 86 App. Div. 217, cited and relied upon by the defendants, does not appear to me to sustain their contention that the resolution of April 11, 1907, should or can be held to have authorized such alterations in the present building. The claim in that case was that because certain plans of a proposed building were submitted by the board of education to the district meeting, the board, in afterwards constructing the building, were limited to those plans, although the resolution passed at the meeting was in perfectly general terms, viz.: “ to erect and furnish a new school building.” The courts in that case held that such resolution authorized the board to construct the building in any manner they might subsequently decide, and did not restrict them to the plans accepted at the district meeting. That case is authority here. for the proposition that if the board of education exhibited the Emery plans at the district meeting as the plans of the addition which they asked authority to build, still, as the resolution passed was in general terms, i. e. “ to erect an addition,” the board in exercising the authority conferred was not restricted to the Emery plans. That case, however, does not appear to me to be an authority for the proposition that the resolution of the district meeting in that case authorizing the construction of a neiv schoolhouse could have been held to authorize the alteration of the old school-house, if such there were, and the expenditure in so doing of a substantial part of the appropriation.

The defendant contractors were bound to know the law and, therefore, to know the statutory limitations upon the power of the board, and to see for themselves that the action of the board w:as within its powers.

The contracts are entire and are not separable, so that the work to be performed upon the addition can be severed from that to be performed in making the alterations and the contract as to the former sustained and as to the latter alone held to be invalid.

I conclude, therefore, that the plaintiff has established his or its case. If, as claimed by the defendants, the action talcen by the board in making the contracts is approved by a majority of the voters in the district, it will be an easy matter to call a special district meeting upon due notice and to pass there a proper resolution authorizing the doing of the work as proposed by these contracts and the raising of' the necessary funds therefor.

The plaintiff in each case is, therefore, entitled to judgment substantially as demanded.

Judgments for plaintiffs.  