
    Smith et al. v. Proctor et al., School Trustees.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Schools and School-Districts—Meetings and Voters.
    Laws N. Y. 1875, c. 567, relating to proceedings for building a new school-house, provides that “ whenever the majority of all the inhabitants of any school-district entitled to vote, to be ascertained by taking and recording the ages and names of such inhabitants attending at any annual or adjourned school meeting, * * * shall determine that the sum proposed and provided for shall be raised by installments, ” etc., the trustees may issue bonds, etc. Held, that this means, not a majority of the whole number of voters in the district, but a majority of those present.
    Appeal from special term, Kings county.
    Action by George W. Smith and Morris Y. Randall, tax-payers of school-district No. 2 of the town of Newton, to enjoin the trustees and collector of that district from issuing its bonds for $12,000, pursuant to an alleged resolution of a school meeting, on the ground that such resolution was not passed by the vote of a majority of the qualified inhabitants of the district. The complaint was dismissed, and plaintiffs appeal.
    Argued before Barnard, P. J., and Pratt, J.
    
      Henry■ A. Monfort, for appellant. M. B. Gould, for respondents.
   Barnard, P. J.

There is no question made as to the regularity of the meeting at whicli the vote was taken. It was regularly called by instruction of the annual meeting for the purpose of voting upon the advisability of building a new school-house. Chapter 567, Laws 1875, § 18. At the meeting so called a new school-house was approved, and at an adjourned meeting bonds were authorized to secure the money, which was to be payable by equal installments. At each of these meetings there was not present a majority of all the inhabitants of the district. The question presented is whether there must be a majority vote of all the inhabitants, or only a majority vote of those present at the meetings. The law required a notice of the meeting with a notice of the business to be brought before the meeting to be served on each inhabitant of the district. This was done. The section under which the vote was taken is as follows: “Whenever the majority of all the inhabitants of any school-district entitled to vote, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual, special, or adjourned school-district meeting, legally called or held, shall determine that the sum proposed and provided for * * * shall be raised by installments, it shall be the duty of the trustees of such district * * * to issue bonds or other evidences of indebtedness therefor.” Section 18. “The majority of the votes of those present” is sufficient to charge the taxable property for the purchase of a school-house. Chapter 555, Laws 1864, art. 1, tit. 7, § 15, subject 9. To change a site “a majority of all the inhabitants of said district present and entitled to vote, to be ascertained by taking and recording the ayes and noes, ” is sufficient. Section 20, art. 2. To sell the old site, “a majority of the votes of those present” is only needed. To create a union free school, “two-thirds vote of those present and entitled to vote” is called for. Title 9, § 5. “A majority of the voters” controls expenditures in union free-school districts, including building new school-houses, and including payments by installments, as in case of single districts. The vote by majority of voters present is the general rule, and the wording of the section in question is addressed to that end. The majority of the inhabitants of the district is to be determined by ages and names of those attending. There is no other way of ascertaining the majority of the inhabitants provided for in the law which would have been considered by the legislature, if the real majority of all the inhabitants was an important factor in the vote at the meeting. The vote by a majority of those present, even if the majority was less than the majority of the whole number of the inhabitants of the district, is sufficient. The judgment should therefore be affirmed, with costs.

Pratt, J"., concurs.  