Incorporation of Village of Purchase, In re

• Citation: 283 N.Y.S.2d 911,54 Misc.2d 1049
• Parties: In the Matter of the INCORPORATION OF the VILLAGE OF PURCHASE.
• Decision Date: 05 October 1967
• Court: United States State Supreme Court (New York)

Page 911

283 N.Y.S.2d 911

54 Misc.2d 1049

In the Matter of the INCORPORATION OF the VILLAGE OF PURCHASE.

Supreme Court, Westchester County.

Oct. 5, 1967.

John J. Di Sesa, Harrison, for Town of Harrison.

Wren & Martineau, Pleasantville, for petitioners.

George L. Bickler, Gerald Brown, White Plains, for Peter Dolt.

GERALD NOLAN, Justice.

This proceeding is brought pursuant to Section 3--324 of the Village Law to determine the validity of an election held to decide the question of incorporation of the proposed Village of Purchase in the Town of Harrison. The election was held on August 17, 1967, and resulted in the defeat of the proposal to incorporate by a vote of 136 to 134.

It is asserted by the petitioners that the election was irregular and invalid for a number of reasons. Concededly the Town Clerk of the Town of Harrison kept the registration list open to public inspection and made additions thereto on August 14, 15 and 16. Petitioners claim that thirty additional persons were registered on the 15th and 16th. Respondents concede that on those dates seventeen names were added to the registration list. It is further alleged that the Inspectors of Election (The Town Supervisor and the Town Clerk) failed to properly supervise and conduct the election, in that they permitted electioneering by opponents of incorporation in and about the polling place and within 100 feet thereof, they allowed unauthorized persons to enter the voting booth with voters, that they permitted intimidation of voters by persons opposed to incorporation, and permitted confused, crowded, noisy and chaotic conditions to exist at the polling place. These allegations are denied. Concededly, however, sample ballots were not provided, nor were there any distance markers as required by Sections 249 and 254 of the Election Law. It is also not disputed that the Comptroller of the Town of Harrison prepared, published and distributed what purported to be an estimated budget, for the proposed Village of Purchase, and it is claimed that it grossly exaggerated the cost of operation of the proposed village, and was calculated to mislead the voters into the belief that in the event of incorporation their taxes would be greatly increased. Concededly also, however, the proponents of incorporation prepared and circulated to the voters their own estimated budget, which purported to show that incorporation would not cause any substantial increase in the tax rate. It is also conceded that the Town Supervisor published and distributed to the voters a letter in which he strongly opposed incorporation, and it is asserted that this letter was calculated to mislead and to intimidate the voters.

Although the pleadings present issues of fact with respect to the claimed irregularities in the conduct of the election, and with respect to alleged improper conduct of the Supervisor and the Town Comptroller, the parties have elected not to present oral proof in support of their respective allegations. Consequently, the determination of the questions presented must be made on the basis of the conceded facts.

Unquestionably the proposed incorporation was a matter of great public interest in the territory affected, and the papers presented leave no doubt that the qualified voters were sharply divided in their opinions as to the merit of the proposed incorporation, that they organized to support and to oppose the proposition, and vigorously campaigned for and against it. Watchers were appointed to act in behalf of each group, who attended at the polling place, and were active in behalf of those whom they purported to represent. Nevertheless, despite the claim that the registration lists were kept open, and added to illegally on the two days prior to the election, neither the petitioners nor anyone else protested the practice adopted, in so far as the papers disclose, and concededly no voter was challenged at the election on the ground that his name had been added to the registration list after the list was required by law to be closed. Apparently, before and during the election, everyone concerned was content with the practice adopted, considered it legal, and was prepared to abide by the result.

Unquestionably there were irregularities in the conduct of the election in the failure to furnish sample ballots and to put out distance markers, and opinions as to the qualifications of voters may have been forcibly expressed, and some improper electioneering may have occurred. The papers presented do not establish, however, that any voter was actually intimidated, and it does not appear that any qualified voter was prevented from voting or that any person who was not a qualified voter was permitted to vote. The Supervisor's letter, although expressing strong opposition to incorporation, for reasons stated therein, can hardly be considered intimidation, and there is no proof that it contains any false statements of fact, or that the opinions stated were not advanced in good faith. The same may be said of the Comptroller's estimated budget, which reflected merely his opinion as to expenses which might be incurred. With respect to the admitted irregularities, it was conceded on argument that none of them was sufficient, standing alone, to invalidate the election. It is the court's opinion that their cumulative weight should have no greater effect. Although petitioners should be entitled to relief if they have made a showing of facts sufficient to justify a reasonable belief that any of the irregularities referred to affected or could have affected the result of the election (Cf. People v. Cook, 8 N.Y. 67, 93; Matter of McGuinness v. DeSapio, 9 A.D.2d 65, 191 N.Y.S.2d 798), no such finding may be made on the papers presented.

The questions remain, however, whether the keeping of the registration list open for public inspection, and the making of additions thereto on August 15 and 16 were violations of the controlling statutes and, if so, whether they require the invalidation of the election.

The procedure governing the registration of voters, and the conduct of elections with respect to the incorporation of villages, is provided by Article 3 of the Village Law. Personal registration of voters is not required. Each resident owner of real property in the territory, qualified to vote for town officers, may vote, provided his name appears on the registration list (Village Law, Secs. 3--316, 3--318, subd. 4) which must be prepared by the Town Clerk and filed in his office, at least ten days before the election. The list is required to be prepared by copying from the last completed assessment roll of the town the names of all persons shown thereon as owning real property in the affected territory, and by modifying and supplementing it according to information as to changes in ownership supplied to the assessing officials by the county since the completion of the last assessment roll, and acquired by reference to the town register or the registration poll records, for the last preceding general election in a county where permanent personal registration has been established. The clerk may also employ any other method which will result in a more accurate list. From the last thus prepared there must be deleted the names of all such owners of property not listed in the town register or the registration poll records. (Village Law, Sec. 3--318, subd. 1). However, additions may thereafter be made to the list as provided in Section 3--318, subd. 2, of the statute, which provides as follows:

'* * * At least three days prior to such election and not on a Sunday the registration list for such election shall be open for inspection by the public in the office of the town clerk preparing same between the hours of twelve o'clock noon and nine o'clock in the evening where and when any person claiming to be qualified to vote at such election whose name is not included in the registration list of voters therefor may apply to such clerk for a revision of such list to include his or her name. The clerk, upon presentation of proper proofs showing that such person is an owner of real property in such territory and town and is or will at the time of such election be qualified to vote for town officers of such town as a resident of such territory, shall revise such list to include the name of such person.'

It may be noted that the list may be opened for inspection and for additions thereto more than three days prior to the election, and that the statute does not expressly provide that it must be closed at least three days prior thereto. Neither does it, by subdivision 2, specifically place any time limit on the addition by the clerk, of the names of property owners who will be qualified to vote on the day of election. Clearly, also, such property owners need not be listed in the town register, or in the registration poll records for the last preceding general election. All that is required is that they be resident property owners, who are, or will be qualified, to vote for town officers at the election (Village...