
    Second Appellate Department,
    October Term, 1904.
    Reported. 97 App. Div. 438.
    In the Matter of the Objections to the Petitions of Electors of the Town of Newburgh, in the County of Orange, N. Y., Requesting the Submission of the Questions under the Local Option Provisions of the Liquor Tax Law of the State of New York, at the Election to be Held on the 3d Day of November, 1903, in Said Town.
    Summary application to determine the sufficiency of a petition for the submission of local option questions—Neither the Supreme Court nor a justice thereof may entertain it—Presumption in favor of the town clerk’s decision as to its sufficiency—An injunction suit by a taxpayer, distinguished.
    Neither the Supreme Court, nor a justice thereof, has jurisdiction, under sections 56 and 65 of the Election Law, to entertain a summary proceeding to determine the sufficiency of a petition filed with the town clerk requesting the submission of the local option questions to the electors of the town.
    
      Semble, that it would be different in an injunction suit brought by a taxpayer to restrain action by a town clerk.
    
      Semble, (per Hooker, J.), that where the town clerk treats the petition as sufficient, it will be presumed that it was signed by ten per cent, of the electors of the town as required by section 16 of the Liquor Tax Law, although the petition does not state any facts from which such percentage may be calculated: The burden of showing that the petition was not signed by the requisite number of electors rests upon the party attacking the petition on this ground.
    Charles H. Flynn and Samuel C. Whitlow, Objecting Petitioners, Appellants; J. D. Billingsly and Others, Petitioners, Respondents.
    
      Appeal by the petitioners, Charles H. Flynn and another, from an order of the 'Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Orange on the 10th day of November, 1903, denying the petitioners’ motion to have set aside and declared invalid certain petitions theretofore filed with the town clerk of the town of Newburgh relative to the submission of the local option questions, under the Liquor Tax Lav/ of the State of New York, in said town of Newburgh, and denying a motion to have the said town clerk restrained from printing or causing to be printed the ballots for the submission of said questions .and from submitting the same.
    
      Henry Kohl, for the appellants.
    
      J. Bemoiok Thompson, Jr., for the respondents.
   Willard Bartlett, J.:

I think we ought to dismiss this appeal. The proceeding appears to have been instituted by a petition and affidavit upon which an order was granted returnable before a Special Term of the Supreme Court, requiring the town clerk of the town of Newburgh to show cause why certain petitions filed with him relative to the submission of certain local option questions under the Liquor Tax Law should not be declared invalid, and why the same should not be set aside, and why he should not be restrained from printing ballots for the submission of the questions aforesaid. The application ivas of a summary nature, and it appears to have been supposed that there was jurisdiction to entertain it either on the part of the Supreme Court or a justice thereof, under sections 56 and 65 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 654). An examination of these sections, however, shows that they have no reference whatever to petitions or other proceedings under the Liquor Tax Law, but that they relate solely to certificates of nomination under the provisions of the Election Law. The attempt to bring questions concerning the local option provisions of the Liquor Tax Law before the court by a summary proceeding under sections 56 and 65 of the Election Law appears to me to have been wholly without authority. The court below, therefore, possessed no jurisdiction to pass one way or the other upon the sufficiency of the petitions. It would have been different in an injunction suit by a taxpayer to restrain action by the town clerk; but such was not the nature of this proceeding. Inasmuch as the court at Special Term possessed no jurisdiction, I think the proper course for this court is neither to affirm nor reverse its decision, but to dismiss the appeal.

All concurred (Hooker, J., in separate memorandum).

Hooker, J.

(concurring) : I concur with the views expressed in the opinion of Mr. Justice Bartlett, and vote to dismiss the appeal, but in any event the appellants should not succeed. The facts presented by the record are that on the 12th day of October, 1903, more than twenty days before the general election of that year and the biennial town meeting of the town of Newburgh, Orange county, there was filed with the town clerk of that town a petition purporting to be drawn under the local option pro visions of the Liquor Tax Law (Laws of 1896, chap. 112, § 16, as amd. by Laws of 1897, chap. 312; Laws of 1899, chap. 398; Laws of 1900, chap. 367, and Laws of 1901, chap. 640.) On the 21st day of October, 1903, the appellants filed with the town clerk written objections to the filing and acceptance of the petitions-upon the ground that they were not properly and formally executed and acknowledged. The town clerk having refused to-pass favorably upon the objections and having indicated .his intention to cause the local option questions to be submitted to the people of the town, the appellants procured, upon their petition, an order requiring the town clerk to show cause why the petitions should not be declared invalid and set aside and why he should not be restrained from causing the questions to be submitted at the town meeting. The motion was opposed by certain of those who had signed the original petitions, filed with the town clerk, and resulted in an order denying the motion, from which order the proponents have appealed to this court.

The record contains copies of the original petitions. There seem to be two of these, some of the petitioners having signed one and the balance the other; this was evidently done for the sake of convenience in procuring the signatures and taking the acknowledgments. Objection is made that in the one petition the certificate of acknowledgment, made by the notary, does not contain the date on which certain subscribers appeared before him and acknowledged the execution of the paper, and that upon the other petition no formal certificate of acknowledgment signed by the other notary is annexed, the only words appearing upon the latter petition which might be intended to have the effect of acknowledgment being “Acknowledged, subscribed and sworn to before me, this 6th day of October, 1903.” In the view I take of this appeal, however, it is unnecessary to discuss the effect of these two objections. There is appended to the first petition a full, complete, formal and adequate certificate of a notary public that on a given day. before the subscriber, the notary, personally appeared forty-five signers of the foregoing petition, their names being included in the certificate of the notary, personally known to be the same persons described in and who executed the above petition, and that they severally acknowledged the execution of the same. It affirmatively appears in the papers that the number of names of electors in the aggregate signed to both petitions exceeded ten per cent, of the number of vots cast at the next preceding general election, but nowhere does it appear how many votes were cast at that time, nor is anything suggested from which a number equaling ten per cent, thereof can be computed. For aught that appears the forty-five subscribers to the first petition, whose names are contained in the adequate certificate of the notary, may have comprised over ten per cent, of the electors, and thus the requirement of section 16 of the Liquor Tax Law (as amd. supra) would be met. Until facts to the contrary are shown by those who seek to attack proceedings under this section, it must be presumed, in view of the town clerk’s action in submitting the questions, that the number of signers whose names are contained in the proper certificate were a sufficient number to require the clerk to act. I agree with the opinion expressed recently in the third department, in Matter of Rice (95 App. Div. 28; 88 N. Y. Supp. 512), that the burden is upon those attacking the vote to show, as a matter of fact, that the petition did not contain the requisite number of signatures. The appellants in this case claim that if the names of those signers of the petition which are contained in the certificate of the first petition where the date is ■omitted, and whose names are subscribed to the second petition where no formal notary’s certificate appears were not counted, the number remaining would not meet the requirements of the statute and would not show a desire on the part of at least ten per cent, ■of the electors to have the propositions submitted; but in their papers they have omitted to show the important fact in this connection, namely, whether or not the balance of the names yet remaining, and which must be considered regularly presented to the town clerk, would comprise enough of the electors to carry the question to a vote.

Appeal dismissed, with ten dollars costs and disbursements.  