Gumaer v. Sisson

Cochrane, J.: At the biennial town meeting of the town of Mamakating, Sullivan county, N. Y., in November, 1917, the four local option questions contained in section 13 of the Liquor Tax Law were submitted to the qualified electors of the said town and carried in the affirmative. Because notice of such election had not been properly given an order was granted by the Supreme Court nullifying the election and directing that the question should be again submitted at a special town meeting to be held September 12, 1918. At such special town meeting in two of the three election districts of the town the polls were closed one hour prior to the time fixed by statute. (See Town Law [Consol. Laws, chap. 62; Laws of 1909, chap. 63], § 51.) This was without wrongful intent and was due to a misconception of the “ daylight saving ” law. (See Act of Congress of March 19, 1918; 40 U. S. Stat. at Large, 450, chap. 24; Gen. Constr. Law [Consol. Laws, chap. 22; Laws of 1909, chap. 27], § 52, as amd. by Laws of 1918, chap. 112.) The result of the special election as declared by the election officials was in the negative in respect to all of the propositions except the third. The respondent, being a hotelkeeper of that town, made a motion at Special Term for an order setting aside and declaring [563] null and void the special town meeting, which motion was granted, and from the order granting the same an appeal comes to this court. Clearly a summary order of this nature cannot rest upon the inherent power of the court but must rest upon the authority of the statute. (Matter of Tamney v. Atkins, 209 N. Y. 202, 206; Matter of Farley, 158 App. Div. 840.) The Liquor Tax Law (§ 13) provides that the court or a judge thereof may order a special town meeting if there has been an improper submission at the biennial town meeting. But the statute contains no provision for any subsequent order or direction, and at that point the power of the court or judge ceases so far as such power is derived from the statute. (Matter of Farley, supra.) It is urged that the special town meeting was void, not merely because the polls were closed too early, but because the early closing changed the result and that the election, therefore, being not only voidable but void, was as though there had been no election and might be so declared by the court. An answer to that argument is that the effect of the early closing as bearing on the result of the election presented a question of fact for the determination of the court and the statute has not clothed the court with power to determine that question in such a summary maimer. The respondent is not without remedy. One clear remedy is indicated in Raymond v. Clement (118 App. Div. 528, 530; affd., on opinion below, 194 N. Y. 560). The order should be reversed and the motion denied, with costs. All concurred, except John M. Kellogg, P. J., dissenting with a memorandum, and Lyon, J., not voting.