
    The People of the State of New York ex rel. Henry W. Cromwell, Town Clerk of the Town of Woodbury, Orange County, New York, Respondent, v. James Seaman, Supervisor of the Town of Woodbury, Appellant.
    
      Town house — money, may be voted for it although the location and the cost of a site are not p)'ovidedfor — the selection of the site rests with the town boa/rd.
    
    Section 190 of the Town Law (Laws of 1890, chap. 569, as amd. by Laws of 1900 chap. 395), permitting the voting by the electors of a town of money “for the purchase of a site and the building of a town house,” authorizes the voting of money for the erection of a town house alone, where the town expects a suitable site to be donated.
    The proposition submitted to the electors need not include the location of the . contemplated site.
    
      Semble, that the selection of the site is committed to the discretion of the town board by the statutory provision that “ sites shall be purchased and houses erected by the town board.”
    Appeal by the defendant, James Seaman, supervisor of the town of Woodbury, from an order of the Supreme Court, made at the Orange Special Term and bearing date the 1st day of December, 1900, and entered in the office of the clerk of the county of Orange, directing that a peremptory writ of mandamus issue to the said James Seaman, supervisor of the town of Woodbury, requiring him forthwith to sign bonds issued by the town board of the town of Woodbury for the purpose of raising money to erect a town house, and deliver the same to the town board.
    
      A. H. F. Seeger, for the appellant.
    
      Graham Witschief, for the respondent.
   Hirschberg, J.:

Conceding, but- without deciding, that where it- is evident that a serious question of validity may arise the court will not compel the issuing of municipal bonds by peremptory mandamus, the order appealed from nevertheless finds ample support. By section 190 of’ the Town Law (Laws of 1890, chap. 569), as amended by chapter 295 of the Laws of 1900, the electors of a town ’ in which there shall not be a town house are authorized at any biennial town meeting, or at a special town meeting, to vote a sum of money by ballot “ for the purchase of a site and the building of a town house; ” and, if such sum is not raised by tax in one installment, the town board may borrow the sum necessary to purchase such site and build such house by the issue of bonds to be signed by the supervisor and attested by the town clerk.

Pursuant to this legislative authority the electors of the town of Woodbury, in Orange county, at a special town meetings held on the 24th day of July, 1900, voted the sum of $5,000, as appears by the form of the ballot cast, “ for the purpose of erecting a Town House.” The town board decided to raise the money by the issue of bonds, but the supervisor refuses to sign them.

The main contention urged on his behalf, as stated in the brief of the learned counsel for the appellant, is that the statute “ does not authorize this issue of 'bonds, because that section (190 as amended) permits an issue only for the erection of a Town Hall and the purchase of a sité—not for either.” The construction thus contended for is a very narrow one, and no good reason is assigned why it should be adopted. The statute does not say, either in terms or by necessary implication, that the money necessary for a site cannot be voted separately from money with which to construct the building, or that money necessary for a building cannot be voted if the town already has a site; nor does .the ballot as cast necessarily indicate that the money to be raised was not intended to include the purchase of a site as necessarily incident to “ erecting a Town House.” The papers in the record, however, show that the town expects a suitable site to be donated, and that the money voted has been accordingly limited in amount to the sum required for the purposes of construction. On the appellant’s theory if such a sité, in all respects satisfactory to the electors, had been actually conveyed to the town before the. election in question was held, the election would be void unless it included in its scope the wholly useless expense of voting money with which to purchase another site. And the same result would follow from- the logic of his contention if the town, having a site and town house thereon, should lose the house by fire or otherwise without insurance, or with insurance inadequate to restore the building. In the case suggested it would manifestly be necessary to raise money in order to build a new house, but surely that separable purpose need not be coupled at the election with the proposition to buy an additional site as the sole condition of legality. It is to be noted that the condition under which the statute authorizes the vote to be taken is that “ there shall not be a town house ” in the town, not that there must be neither a house nor site, thus indicating that the law embraces the site as an incident to the building or contemplates conditions under which but the one purpose may be required.

The learned counsel further contends, as a corollary to his position, that the true construction-of the statute requires that the ballot cast by the electors should fix the site; in other words, that the proposition submitted to the electors should include the location of the site as contemplated. This is a claim wholly beyond the assertion and import of the statute itself, and no rule of construction is advanced to justify the reading of the requirement into the law by judicial action. Section 191 of the statute provides that “ sites shall be purchased and houses erected by the town board in the name of the town, and shall be controlled by the town board.” While the law is wholly silent on the express subject of the selection of a site, the authority here conferred is sufficient to include the choice of a site as a necessary incident to its purchase, just as the adoption of a plan, including the selection of material, design, etc., must be deemed to be embraced within the authority given to build the house.

The other grounds of objection urged relate to alleged irregularities not affecting the merits of the controversy, and certainly not affording legal justification to the supervisor in opposing the wishes of the. electors.

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  