This volume contains the .

J,nformal opmions of the _Attorney

General. They are divided into two classifications, thoserelating
to local government, beginning on page 3, and those ·of general
interest, beginning on page 118. In making this division the plan
generally followed has been to classify as local those having any
direct bearing on the local organization and administration of
government or charges upon local units of government, even
though they also touch upon matters of more than local interest.
Most election matters, except those bearing upon the appointment
and compensation of election officers, have. been classified in Part
II as of general interest, as have those opinions dealing with the
jurisdiction and procedure of local judicial officers.
The :f:ormal opinions of the Attorney General are to be found in
the Annual Report of the Attorney General.
 PART I

INFORMAL OPINIONS OF THE ATTORNEY GENERAL

RELATING TO

LOCAL GOVERNMENT
 INFORMAL OPINIONS OF THE ATIORNEY GENERAL
RELATING TO LOCAL GOVERNMENT
gU:C'l'ION LAW, SECTION i10-Two O"FI('ES-ELECTION CO~nIlSSIONER ANH
.1 FS~'WE OF THE PEACE.
A justice of the peace who has been appointed IlIl election commissioner
may serve the remuinder of his term a~ justice of the pence while holding the
office of eleetinn eommlasiom-r.

Your letter of December l-l, 1948 inquires whether a Justice

of the Peace who took office on .l anuary T, 1948 for a term of
four years, and who has been appointed as an Election Commis-
sioner of Franklin County by the Board of Supervisors, may fill
out his unexpired term as Justice of the Peace.
Seetion 30 of the Eleetion Law deals with boards of elections,
'I, ------,-----1
~) ~/
"i . \
the qualifications of election commissioners, and their appoint-
ment, removal, and term of office. Subdivisiou S of that section
provided as follows:
STAI r; L, I(ARY "2. The commissioner of elections, while holding such office,
ALBANY may hold party positions and one of the following offices:
notary public, eonuuissioner of deeds, alderman of a city of
less than fifty thousand population, police justice of a vil-
lage, trustee 01' officer of a common or union school district
outside of a city, justice of the peace of a town, and any
other office filled by election or appointment within or for
a town or village, or district or subdivision of either, except
supervisor, town clerk, inspector of election, or election dis-
trict clerk. Such commissioner shall not hold, while he is a
commissioner, any other office, except as above provided.
Each commissioner of election shall he at the time of his
appointment a resident and a voter of the political unit for
which he is appointed."
You will note that the office of justice of the peace of a town
is expressly included within the group of offiees which an election
commissioner may properly hold and, accordingly, a justice of the
peace who has been appointed an election commissioner may serve
his unexpired term as justice of the peace.
In view of the fact that the Attorney General is authorized to
give legal opinions to the heads of the departments and agencies
of the State government only, the foregoing discussion must be
considered as being entirely informal and unofficial, given in the
desire to he of assistance to you .
.January 10, 1!l49
,JA;\IES F. lVIII,I,S, FhL]Jervisor, Fort Covington,
[3J

'721R60

VIT,LAGE LAW, SEC~'ION 232. . .
A village may sell Duly surplus WUt:OI' outside Its (·.lIl']llIl'lll:tl
This will acknowledge receipt of your letter of .Jnnnayy ar~l ill
relation to the authority of a village water board. to (~IScontI.nue
water service outside its corporate limits because 01 an insuffteient
water supply for the village itself. . . partment and that "Such council shall «< >II< >II< prescribe * * *
I am informed by the State He!l;lth Depar1'me,lIt: 1'.hat the Yl1l~ge
of Pleasantville has not entered into a plan Tor ~n.tere.ollnectlon
of its water system with that of ~Il1Y other JIln~lHllpah!,y u~Hlel'
the mutual aid plan for water service as :"101' out 111 R(wtlOll. 120·\1
of the General Municipal Law. That hemp: 1m, J doubt the ap-
plicability of that Section to your inquiry.
In my opinion the power 0(' It village to sell .water outside its
corporate limits is limited to surplus water Uh'nL 1J8(Jn v. l'a'rlcm'
(1907) 190 N. Y. 19). I call to your attention ~e(~tion 2:~2 of the
Village Law which authorizes a village to supply water outside
its corporate limits. That section provides ill part, "The board
shall not sell nor permit the lise or water under this seetion if
thereby the sllpply for the village or its in hahitauts will he in-
sufficient. "
I am' sure you are familial' with the Iimitation HIlmI the au-
thority o:f: the Attomey-Genernl to furnish legal opinions to
officers and departments of the 8tate. government 1)1\IJ'. Neees-
sarily, therefore, the f'oreaoing must he understood to have been
rendered informally and unofficially beoause of II desire to be
helpful to you. It is not to he considered 1L Iormal opinion of
the .Attorney-General.
I note in your letter that you indicate ,you have previously
written the Attorney-General on this subject. T can find 110 trace
of such a letter having been received by this Department,
January 10, 1949
JOHNT. OARR LOWE, New York.
'Vrr,LAGE LAW, SJ~CTION' 89 (24).
'Village board of tmatees nw,J' 0111(11' into n rnl1tl'lu'lfol' Ilrc' Pl'ojov.tion with
the village fire department,
There has been referred to me f'o!' attention your reeeut letter
to the Oomptroller in relation to the propriety the direct ex-
penditure of village moneys for certain P1U'pOH(!H of the village
fire department viz., merit badges ,for firemen for the faithrtll
performance o:f: their duties; dues to flreman!« HRHo('itltionFl lind
subscriptions to "publications containing data and information
regarding new techniques in fire nglitingo."
I can find no precise statutory authority which would seem to
authorize the first two expenditures and r doubt that village
moneys may be thus directly expended by the board or trustees.
Although I am inclined to feel that the (lemtI'llry would be true
with respect to the last named expenditure, do make the fol- r
lowing suggestion to you ..
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 5
. .
Section 89 Subdivision 19 of the Village Law provides that the
limlta, village board of trustees in a· village having. no separ~te board
of fire commissioners acts as such board. Section 206 of that law
provides that in such a village having n? separat~ board of fire
commissioners the chief engineer, the assistant engineers and the
wardens of the companies constitute the council of the fire de-
the disposition of the funds of its fire department." The term
fire department as used in the Village Law means the members .of
all of the fire, hose, protective and hook and ladder eompames
of a village. organized and maintained in pursuance of law, con-
stitute a corporation by the name of the "Fire department of
"
.. U~d~l: 's~dti~I~' 89: 'Subdivision 24 ot'the Village Law, the vil-
lage board of trustees may enter into a contract for fireprotec-
tion with the fire department of the village-, Where such ~ contract
has been entered into, the consideration thereof may consist partly
of a definite sum and partly of an agreement to pay the necessary
and reasonable expenses of the department. .
However, when such a contract, as has been described, has. been
entered into between a village board of trustees and the VIllage
fire department, the consideration thereof when paid to the fire
council does not constitute funds of the village but are funds of:
the fire department and may be expended as that body determines.
It is my opinion that all of the purposes set out above would
be a proper expenditure of fire council moneys.
The Attorney-General is authorized by law to render legal
advice to officers and departments of the State government only.
Necessarily therefore, the foregoing must be considered as
having bee~ rendered informally and unofficially be?8use of the
Attorney.General's desire to be helpful to you. It IS not to be
considered a formal opinion of the Attorney-General.
January 17, 1949
JOHN F. KIERNAN, New York
.
GENERAT, MUNICIPAL J~AW,SEOTION 209.
A city may render aid outside its territory in the event c\f fire,under the
or cited section.
'I'his will acknowledge receipt of your recent letter in relation to
the manner in which fire protection should be afforded the 'I'own
of Little F a l l s : ' .
I know of no statute which compels the town to sstahlish a fire
protection district including all or any part of. the territory of
the town. This is purely a localmatter upon which I can express
110 opinion as to necessity 01' desirability, .. .
A. town may not, as such, enter into a contract WIth a city to
furnish fire protection to such town f?I' an agreed amou:lt (1944
Atty. Gen. (Inf.) 72), although there IS statutory authority for a
 6 INFOR)IAL OPINIONS OF THE ATTORNEy-GENERAL
city to aid a town in the event of fire under Section 209,Subdivi_
SiO;l 1 of the General Mnnicipal Law and any loss or damage to, or
expense incurred in the operation of fire apparatus answering a
call for assistance from the town in addition to the cost of any
materials used in «onnection with such call is a charge against the
town under Subdivision 2 of that section. Subdivision 4 thereof
provides in part, "In towns which' do not contain a city, village,
fire distriet, fire protection district or fire alarm district, such loss
damage, expense or cost shall be a town charge audited and paicl
in the same manner as town charges." This charge may properly be
paid from the town general fund in such a town.
The Attorney-General is authorized by law to render legal
advice to officers and departments of the State government only.
Necessarily, therefore, the foregoing' must be considered as having
been rendered informallv and unofficially because of the Attorncv-
General's desire to he helpful to you. It is not to be considered'a
formal opinion of the Attorney-General.
,January 17, 1949
JAi\IES A. McTIERNAN, Little Falls.
SECOND CLASS CITIES LAW, SECTION 74.
The board of estimate and apportionment of the City of Scheneetad,}' may
fix the salaries of city employees.
. T~is ,;ilJ acknowledge receipt of your recent letter in which you
mqmre If the present rate of salary of city employees of the City
of Schenectady may be reduced at some future time.
Section 74 of the Second Class Cities Law provides in part as
follows:
"The hoard of estimate and apportionment, except as other-
wise provided by law, shall have authority to fix the salaries
or compensation, and determine the positions and numbers of
all city officers and employees, of each offiee, board and
department. «' * *"
'This statute applies to the City of Schenectady. It follows that
the board of estimate and apportionment of your city might law-
fully determine in the future, if it so deemed proper, to omit a
• so-called "cost of living' adjustment" salary increase in the salaries
of city employees. The fact that such increase had been included
in the regular salary checks· of such employees would be im-
material.
The Attorney-General is authorized by law to give legal advice to
officers and departments of the State government only. 'I'he fore-
going is, therefore, renderd informally and unofficially with a
desire to he helpful to you and is not to be considered a formal
opinion of the Attorney-General.
January 18, 1949
EARL A. AUSTIN, Schenectady.
INF'oR~JAL ()PINIONS OF trIII~ i\T'roR:\EY..(}EXEHAL 7
COl;:-;'fY LAW, Sr:C~'ION 121 G); CONRTI'ITTION, ARTI(U: XIII, RECTHIN 12.
Neither the Legislature nor the board of supervisors IlJaJ iuerease the
eumpensatlon of a county clerk efff'eth'e during his term of omee.
'I'his will acknowledge receipt of your recent letter in which you
ask if the salary of a county clerk may be increased during his
term of office.
Section 12 of Article XIII of the New York State Constitution
provides in part as follows:
"§ 12. * '" * Each of the other state offieers named in this
eonstitution shall, during his continuance in office, receive a
compensat ion. to he fixed bv law, which shall not be increased
or diminished during' the term for which he shall have been
elected 01' appointed; nor shall he receive to his use any fees
or perquisites of office or other compensation."
'I'he office of county clerk is specifieally mentioned in the Consti-
tution (Constitution, Art, IX, § 5). A county clerk is also clerk
of the supreme court. (Constitution, Art. VI, § 21). A county
clerk is a constitutional State officer within the meaning of Section
12, Article XIII of the New York State Constitution (Eberhard v.
City of New York, 16;l Misc. 870; see Finn v. City of New York,
171 Misc. 725, reversed on other grounds 282 N,Y. 158, 156).
A county clerk is elected for a fixed term of office (County Law,
§1(0) ,
Since a county clerk is a State officer, not a county officer, Sub-
division 5 (a) of Section 12 of the County Law has no application.
It would therefore follow that under said Section 12 of Article
Xl Ll of the Constitution neither the Legislature nor the board of
supervisors may increase or diminish the county clerk's salary
during his term of office (Eberhard v. City of N ew York, supra),
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing must be considered as having been
rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is 1I0t to he considered a
formal'! opinion of the Attorney-General.
.Iauuarv 18, l!J4!J
}<jART, C. 1"ARBER, Hoffmeister.
COl,NTY LAW, SECTION 12(50-(\).
4 county to which the cited section is applicable mny accept a gift for
park pnrposes.
This will acknowledge receipt of your recent letter in which you
ask if Suffolk County mayaccept a gift of real and personal prop-
erty under a will conditioned upon its use and maintenance by the
county as a public park and museum,
Section 12, Subdivision 50-a of the County Law empowers a
board of supervisors of a county which does not have a county park
commission created by special act to create a county park commis-
 8 INFORi\fAL OPINIONS OF THE ATTORNEy-GENERAL
sion. Such commission is authorized to accept, for the county real
and personal property by gift, devise or bequest, for park purposes
and to administer the same. . I note that none of the roads involved in your problem are in
I doubt the power of a county to accept such a gift under Article
7 of the General Municipal Law or Section 14, Subdivision 3 of the
General Corporation Law. Article 13 of the General Municipal
Law which deals with playground and neighborhood recreation
centers does authorize a county to acquire "land" for such purpose
by gift. 'I'his would seem to be of little assistance to you in your
oroblem.
· I assume that you have considered the Suffolk County Improve-
-nent Act (Chapter 190 of the Laws of 1927 at re-entitled and
amended) and its application to the problem at hand.
· Beari~lg in mi~ld of course, the fact ~hat all questions of policy
III relation to this matter must be decided by the officials of the
county concerned, it is my view that if applicable Section 12
snb: 50-.a of the County Law would enable your cou~ty to accept
a gift f?r park and museum purposes conditioned upon the use
and maintenance thereof by the county. I regard the museum
as properly incidental to the park purpose.
· I am sure you are familial' with the limitation upon the author-
ity of the Attorney-General to furnish legal opinions to officers and
dep~rtI:ile~ts of the State government only. Necessarily, therefore,
the foregon.lg must be understoo~ to have been rendered informally
and unofficially because of a desire to be helpful to you. It is not
to be considered a formal opinion of the AHorney-General.
January 24, 1949
EDGAR :B', HAZELTON, County Attol'ney, Huntington.
TOWN LAW, SECTION 130, SUBD. 7.
T~e cited section confers upon a town board a Iimited authority to restrict
parking on the streets of the t o w n . ,
This will acknowledge receipt of your recent 'letter in relation to
the power of your town board to enact an ordinance regulating the
parking and the speed of vehicles on streets of the town.
I am informed that. you 'yrote an identical letter on the same day
to the Department of Audit and Control posing similar inquiries.
As a lawyer, I am sure that you do not expect replies from two
State departments on the same matter so that this letter will of
course, also be a reply to your letter to the Department of A~dit
and Control.
Town~ of the first class and those of the second class having a
population of ~10re than 25,000 have certain powers with respect
to t~e regulatlO~ ?f. traffic under the Vehicle and Traffic Law,
SectIOn. 90, ,SubdlVlSIOJ.1S 1, 2. an~ 4,. which do not apply to your
town, since ItS population, according to the latest federal census is
7,385.
Section 130, Subdivision 7 of the Town Law confers upon a town
INFORlIIAI. OrINIONS OF 'l'HE ATTORNEy-GE::s'ERATJ
board a limited authority to restrict parking on the streets of the
town. (People v. Keane, (1944) 29:3 N.Y. 467).
incorporated territory. .
I do not believe that there is any power in a town board to
restrict parking on state or county highways or on town highwavs
improved pursuant to the provisions of Section 321-a (Hl5) of the
Highway Law in view of the Legislature's enactment of Section
58-a of the Vehicle and Traffic Law,
I know of no authority for your town board to regulate the speed
of motor vehicles on the streets of the town (ef. 1fJ38 Atty. Gen.
241).
The power of certain local legislative bodies to designate certain
highways in which vehicles shall proceed in one direction only,
does not apply to your town (Vehicle and Traffic Law, Section 90,
Subdivision 1).
In connection with this problem, I also call to your attention
Section 95-c of the Vehicle and Traffic Law which empowers the
State Traffic Commission to enact speed and parking regulations
on certain highways at the request of the town board affected.
I cannot undertake to comment upon the validity of any pro-
posed town ordinance, but merely to call to your attention certain
provisions of law which may be helpful to you.
The Attorney-General is authorized by law to give legal advice
to officers and departments of the State government only. The fore-
going is, therefore, rendered informally and unofficially with a
desire to be helpful to you and is not to be considered a formal
opinion of the Attorney-General.
January 24, 1949
GEORGE E. ·WHALEN, Superuisor, Dover Plains:
VlI,LAGE LAW, SECTION 56; EDUCATION LAW, SEC'l'ION 255.
A proposition to establish a puhlic library may properly be submitted to
the electors at a village election.
This will acknowledge receipt of your recent letter in which you
inquire as to the duty of a village board of trustees with respect
to a petition to establish a public library pursuant to Section
255 of the Education Law duly presented to the board.
I note that you have posed the identical inquiry to the State
Comptroller and have advised him 01' your letter to this Depart-
ment. I have discussed your Jetter with officers of his Department
so that this reply will be an answer to both inquiries.
Even thouuh Section 56 of the Village Law contains no precise
reference to the submission of a proposition to establish a public
library, it is my opinion that Section 255 of the Education Law
specifically .~u~h,orizes ~uch procedu~e .and thus over~o~es the
general prohIbItIOn against the submisslon ?f a proposition at a
namicipal election without statutory authority,
10 IKFOH~rAlj OPINIONS OF 'rIlE ATTOHNEY-GENERAL
It is my view that public notice of the proposed submission should
be given as set out in Section 56 of the Village Law.
.As you point out in your letter, Section 255 of the Education
Law provides that "whenever twenty-five taxpayers shall so peti-
tion, the question of providing library facilities shall be voted on
at the next election or meeting at which taxes may be voted" and
taxes are not voted at annual village elections. However, the first
line of that section indicates that such a proposition may be sub-
mitted "at any eler-tion." Reading the section in its entirety it
seems to me to enable village electors to vote upon such a question
at any village election, including' the annual election. If the propo-
sition is adopted, it is Illy view that the trustees must include the
item for library facilities in the next annual village budget.
The Attorney-General is authorized by law to render legal ad-
vice to officers and departments of the State government only,
Necessarily, therefore, the foregoing is rendered informally and un-
officially because of the Attorney-General's desire to be helpful to
you, It is not to be considered a formal opinion of the Attorney-
Genera 1.
January 24, IH49
CiEORllE L. HeBDEl,]" Jn., Y illage Counsel, Garden City.
OEloiER.\L c.Il'loiI<'IP.\L LAW, SECTIOR 20H·d.
A viJiagl' Illay contract for outside serviecs of its volunteer fire depart-
nieut unrl pHy a portion to the lire eOlllpnuy performing the SCHiel' under
the cited sur-tion.
Thill will acknowledge receipt of' your recent letter in relation to
the dispollition of the proeeedsnf a contract for fire protection
entered into bv a village for the services of its volunteer fire de-
partment outside the village.
A village nHQ- enter into such a contract pursuant to the pro-
visions of Section 2lHJ-cl of the General Municipal Law. The fire
commissioners of certain fire districts may contract for fire pro-
tection (Town Law, Section 176, Subdivision 22) and, according
to the records available at the seat of government, the Barnum
Island Fire District established in 1930, is such a district.
Rection 20H-clof the General Municipal. Law prescribes the cir-
eumstances and the precise amount of the consideration of such a
l·.ontl'H('t for outside, service which l!ltlY properly be paid to the
fire department performing the Se1'V1(:e.
No .moneys received by a village for such outside service may
b~ paid to a volunte~r fire department or company within the
VIllage unless and until the contract so provides (1944 Atty. Gen.
(In£.) 58).
I am sure you are familiar with the limitation upon the authority
or the Attornev-General to furnish legal opinions to officers and
departments of the State government only. Necessarily, therefol1,
INFOHUAL OPIKIONS OF THE .ATTORNEY-GEKERAI.J 11
the foregoing must be understood to have been rendered informally
and unofficially because of a desire to he helpful to you. It is not
to be considered a formal opinion of the Attorney-General.
January 31, 1949.
JULES B. 8'1'. GER:\IAIK, Village ,,1tf(JrnnJ, Island Park.
'I'OWNLAW, SEC'fION 175(3), SECTIOR 176(11), (ll-a).
A fire commissioner should nut at the same time art as chief of the fire
department serving the district.
This will acknowledge receipt of your recent letter in which you
ask if a fire district couuuissiouer may at the same time also serve
as chief engineer of the volunteer fire department serving the fire
district.
Section 175, Subdivision :1 of the Town Law which prescribes the
qualificatious of fire distr-ict offk-ers provides in part that "Member-
ship in a volunteer fire company shall not disqualify any such fire
district conunissiouer, tt-easurcr or secretary," However, a some-
what different situation arises with respect to the offices of chief
engineer and assistant engineer of a fire department of a fire dis-
trict. Although the JI] embers 0 l' the fire department nominate such
department officers, Seetion 170, Subdivision ll-a of the Town Law
prescribes that "The hoard of fire commissioners at its meeting next
sueeeediug the making of' such nominations shall consider the same
and appoint such persons to the offices to which they are re-
spectively nominated or, if a nomination is not approved the board
shall eall another meeting of the members of the fire department
at which a new nomination shall he made to take the place of any
nominatiou not approved, which procedure shall continue until a
full set of officers is approved.'
If a fire district «onunissioner were to be nominated to the office
of chief engineer or assistant engineer by the firemen, he would
in effect be sitting as a member of the board which makes the
appointment.
Section 176, Subdivision 11 of the Town Law provides that the
board of fire commissioners "May adopt rules and regulations
governing all fire eornpanies and fire departments in said district
and prescribing the duties of the members thereof and enforce
discipline * «< «<," The discipline suspension or removal of a fire
chief could therefore come before the fire commissioners to be
determined.
In my opinion it is against public policy for a board of fire
commissioners to appoint one of its own members fire chief of the
fire department serving the district or to permit such a com-
missioner to have any part in the discipline, suspension or removal
of himself as such fire chief (cf. lH47 Atty. Gen. 82).
The Attorney-General is authorized by law to give legal advice
to officers and departments of the State government only, The fore-
going is, therefore, rendered informally and unofficially with a
12 INFORMAL OPINIONS OF THE ATTORNEy-GENERAL
desire to be helpful to you and is not to be considered a formal
opinion of the Attorney-General.
January 31, 1949
CHARLES M. STUBBS, Scotia.
ELEC'l'ION LAW, SECTION 2, SUBD. 5, SECTIONS 83, 87, 90, 103, SUBDS. lAND 2-
DEFINITION OF "PAM'y"-NOMINATIONS-DISTRIBUTION OF ELECTION SUI"-
PUES AND BALLOTS-ORDER OF NAMES UPON BALLOTS.
Where one of the recognized partiesmakes nominations for village officers,
such nominations must appear first on the ballot, followed by those of Inde-
pendent bodies, the order of precedence among the latter being determined
by the. village clerk.
I am replying informally to your letter of J anuary26, 1949, as
the Attorney General may officially advise only the offleersof the
State.
The question submitted by you appears to be one of first im-
pression:
The holding of village elections is governed generally by the
Village Law, but the Election Law also applies where no provision
is made in the Village Law (Atty. Gen. (Inf.) 1933, 48 St. Dept.
222).
The officer who prepares the ballot (in this instance the village
clerk) "shall determine the order in which shall appear below the
names ,of party candidates (emphasis mine) the nominations made
by independent bodies." (Election Law § 103, subd. 1). ,
Election Law § 105 provides that "* * precedence shall be given
to the * * candidates of the party which polled the highest number
of votes for governor at the last preceding election."
It is evident that where one of the "parties" recognized as such
by the Election Law § 2, subd. 5 makes nominations for village
offices, such nominations should appear first on the ballot, to be
followed by the nominations made by independent bodies.
As to the order of precedence between the latter, the officer pre-
paring the ballot, in determining same, is not required to draw
lots. The provisions of section 103, subdivision 2 relative to the
drawing of lots apply only to candidates at primary elections.
It has been the custom to arrange independent nominations in
the order of the receipt of the nominating petition or certificate
(Childs v. C1lrran, 1944, 183 Misc. 195).
Any determination made by the village clerk as to the order of
preference between independent bodies, which is not discriminatory,
would presumably. be sustained by the court if his determination
was challenged: . .
. It is the village clerk, however, who makes the determination
(See'Election Law §§83, 87, 90) and not the village board.
February 1, 19.49
JAMES S. SCOTT, Village Attor'neYJ Hoosick Falls.
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 13
VILLAGE LAW, SECTIONS 50, 52.
The action of a village board of trustees in incorrectly specifying the
term of a village police justice in the ballots provided at a village election.
dues not affect the length of the. term of that village office.
'I'his will acknowledge receipt of your recent letter in relation
to the expiration of the term of the present police justice in your
village. .
You state that a police justice was duly chosen at the March,
1945 election for a full term of four official years (Village Law,
Section 43) and resigned in October, 1945. The vacancy was filled
by appointment until the March, 1946 election at which time a
successor was elected for a term stated in the official ballot to be
for four years.
Section 50 of the Village Law deals with the filling of vacancies
. in elective village offices. It provides, in part, "* '*' >II< If a vacancy
in an elective office occurs more than twenty days prior to an
annual election, at which a successor for a full term is not to be
chosen, it shall be filled at such election for the remainder of the
unexpired term. '" '*' *" The action of the board of trustees in in-
correctly specifying the length of the term of the police justice to
be elected at the 1946 village election does not, in my opinion, affect
the command of the Legislature as set out in Section 50 OI the
Village Law (ef. Opinion of Atty. Gen. (Inf.) to Mrs. Doris Leach,
March 8, 1948).
Your letter indicates your familiarity with the limitation upon
the authority of the Attorney-General to render legal advice to
officers and departments of the State government only. Necessarily,
therefore, the foregoing must be considered as having been rendered
informally and unofficially because of the Attorney-General's de-
sire to be helpful to you.. It is not to be considered a formal opinion
of the Attorney-General.
February 1, 1949
DANIEL V. FLYNN, Village Clerk J Mount Kisco.
VILLA,GE LAW, SECTION 89(42),164.
Villago truetees may remove snow from village' streets and may cut and
remove grass therefrom.
'I'his will acknowledge receipt of your recent letter.
The practice of removing snow from private driveways with
village owned equipment by village employees is improper (cf.
1945 Atty. Gen. (Inf.) 109). .
If as you state in your letter, the lands between the SIdewalks
and the street curbs are part of the village streets, it would appear
that Section 164 of the Village Law which deals with the cleaning
of village streets might properly be called to your attention. That
. section provides as follows:
"§ 164. Cleaning Streets
The board of trustees may cause the streets of the village
. or any part thereof to be cleared of rubbish or other aecumu-
14 INFORMAL OPINIONS OF rmn ATTORNEy-GENEHAL
lations thereon, injurious to the use or appearance thereof, and
to cause all grass and weeds growing thereon to be cut and
removed once in each month from May to October, inclusive,
wholly at the expense of the village 01' may assess the expense
thereof, in whole or in part, upon the owners or occupants of
the adjoining land. It shall be the duty of the board of
trustees upon the receipt of a petition signed by the majority of
the taxpayers on any street or streets, to cause such street or
streets to be cleared of rubbish or other accumulations thereon
injurious to the use 01' appearance thereof and assess the ex-
pense in whole or in part as aforesaid."
It is to be noted that in the first instance, the clearing of rubbish
and the removal of grass and weeds on village streets is discretion-
ary in the board of trustees, and also that in the event a petition
is presented requiring the trustees to clean such streets that the
trustees have sole discretion to perform such work at village ex-
pense or they may assess the expense thereof in whole or in part,
upon the owners or occupants of the adjoining land.
Section 89, Subdivision 42 of the Village Law provides as follows:
"§ 89. General powers of the board of trustees
'I'he board of trustees of a village. * * *
42. (Snow and ice on sidewalks; weeds and grass; safe-
gnards.)
May require the owners and occupants of lots abutting on
streets to keep the sidewalks in front of such premises free
and clear of all SIlOW, ice and dirt and other obstruction and
may remove from such sidewalk, any dirt, rubbish, snow or
ice which may be thereon and all accumulations of dirt, and
rubbish between the sidewalk and the center of the street and
charge the same to the owner of such property; may require
such owner and occupant to keep such walk in a safe condition
for public travel and to repair and remedy all defects; may
require the owners or occupants of lots to keep the grass and
grass plots within the village cut and trimmed and require
such owner 01' occupant to cut all noxious weeds, long grass
and other rank growths; may erect 01' cause the owners of HIe
property fronting on streets to erect barriers or safeguards
along the line of such streets at dangerous points."
I am sure that YOl~' realize that the Attorney-General has no
control over the manner in which the trustees of any village per-
form their official duties. I can do no more than to call to your
attention provisions of the Village Law which may be helpful to
you.
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State Government only. Neces-
sarily, therefore, the foregoing must be considered as having been
rendered informally and unofficially because of the Attorney-Gen-
INFORMAL OPINIONS OF 'l'IrE ATTORNEy-GENERAL 15
oral's desire to be helpful to you. It is 110t to be considered a
formal opinion of the Attorney-General.
February 14, 1949
HARRY vV. DAY, Carthage.
VIr,I,AGE LAW, SECTION 332; PENAL LAW, SEC'l'ION 1868.
A village trustee may not lease or purchase real property from the village.
This will acknowledge receipt of your recent letter in relation to
the propriety of the lease or sale of certain village owned real
property to one of the village trustees.
I note that you state that the trustee in question leased the
property from t~e village prio,r to his assull:ptio;n of that office and
that the lease WIll shortly expire. You ask If this property may, at
the expiration of the present lease, lawfully be leased or sold to the
trustee.
With respect to the existing lease, since I assume it was other-
wise valid when entered into and was a contract whose provisions
were legally enforceable by the village and the trustee, it is .my
view that even after his accession to office, that the trustee might
properly continue as a tenant of the village under the contract of
leasing (cf. 1D45 Atty. Gen. (Inf.) 69).
When the present lease expires a different situation arises. So
long as he continues to hold the office of vill~ge trustee, r, do not
believe that he may personally be interested III a sale or lease of
village property made by the board of trustees of which he is a
member.
Even though the trustee in question .clid not participate in ~;he
deliberations of the trustees personally III the sale or lease to him-
self, the rule would be the same (cf, Opinion Atty. Gen. (Inf.) to
IJeo Mintzer, 1/13/48).
In addition to the common law prohibition against a contract by
a municipality with one of its officers (Matter of Clarke v. Town
oj'R1(,ssict, 288 N. Y. 272, 274) and the statutory bar of Section 382
of the Village Law, Section 1868 of the Penal Law would make a
village trustee who leased or purchased real property fr'o~ the
village guilty of a misdemeanor. In a VIllage, .real property IS,. of
course conveyed by the board of trustees (VIllage Law, Section
89, Subdivision 3). . .
A public offlcef may choos~ whethe~' he WIll res~g~l so, that he may
enter into a contract m the future WIth the municipality, He must
either resign from office or refrain from entering into such a con-
tract (1945 Atty.-Gen. (InO 69). ..
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only: Neces-
sarily, therefore, the foregoing' nu~st be considered as having been
rendered informally and unofficially because of the Attorney-
. \
 16 INJi'OHlVIAL OPINIONS OF TIm ATTORNEy-GENERAL
?eneral's ~le~il'e t~ be helpful to you.. It is not to be considered a
formal opinion of the Attorney-General.
February 14, ] n49
OI~MAND N. GALan, Village Attorney, Baldwinsville,
VILLAGE IJAW, SlWI'ION 42,
Provided II person otherwise qualified is the owner of record of real p , _
erty nsseaeed llilon tho lnat eomploted village assessment roll such pro I~r
need not have 110<\1\ IlIolSOSSNl to him, it is enough if it is assess~d to anyo~:~ y
This will a(!kllo'w,ledg~ receipt or your recent letter in relation to
the property qualifications required of a village trustee under
Section 42 of the Vlllage Law. . machines, shall at all times be stored in a suitable place."
, If a pel:son is actually the .owner of real propei-ty or record at the
time or Ins. elect](~l: oJ'.appointment and during his term he meets
the property.qualIficatiOns, It IS not necessary that the property be
assessed to htrn ?ll the last preceding village assessment roll. It is
enOt~gh that ll~ IS the owner of record th~reo:r: and the property is
asse~sed ~,o an~ ?ne, "( ef,- 19,3lAtty. gen. 350, Peo, ex. rel. Ge1'st v.
J~ams (1,)04) 4H MU-le, .l97). In passing, I may call to your atten-
tion ,the :f.a~ct that Chapter 650 of the Laws of 1927 deleted the
previously included language in Section 42 of the Villaee Law with
~;espe~t ,~o property qualifications that such property \e assessed
to 111m on such assessment roll.
The Attorney-General is authorized by law to render legal advice
to ?fficers aI~d departments. 0:[ the State government only. Neces-
sarily, theI:e'fore, the foregoing must be considered as having been
rendere~ m:f?:mall y and, unoffiqiallybe.cause of the Attorney-
?eneral s .d~SlI e to be helpful to you. It IS not to be considered a
formal opinion of the Attorney-General.
February 17, 1949
HAROLD It, SODJDN, lTiUag8 A#orney, Lake Placid.
ELEo'rION ho\w, SEQ'I'IONS 62(11),243,265.
'I'here appears to be no authority for It village to rent voting machines
from a town. III Nussnu County a village may rent, such machines from its
county board of elections.
'r~is wi~l acknowledge receipt or YOU! recent letter in which you
. ask 1£ a VIllage may rent voting machines from the town wherein
they are contained for use at village elections.
~rhe. use of voting machines at village elections is optional with
th~ village board (1945 Atty.-Gen. (Inf.) 141) and, in my
opimon, such ,n proc~dure may 11e adopted by the trustees even
though such vlll~ge did adopt the use of such machines for use at
the general election of 1938, the date by which cities and tOW118
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 17
were required to provide such machines under Section 243 or the
Election Law.
In this connection the Legislature has authorized the experimen-
tal use or machines at a village election (Election Law, Section
244) .
r. note that there is precise statutory authority for the rental of
voting machines by a board of elections in Nassau County (Elec-
tion Law, Section 52, Subdivision l). Section 265 of the Election
Law deals with the custody of voting' machines. That section pro-
vides, in part that, * * >I< "The local authorities adopting the
machines shall have the custody thereof when not in use at an
election, and shall preserve and keep them in repair." * * "All 011<
machines shall be boxed and collected as soon after the close of the
election as possible, and the machines, and the boxes for the
I can find no statute empowering a town to rent such voting
machines and in the absence thereof', I doubt the authority of a
town to permit the use of its voting machines by a village either
'with or without rental. In this connection it was deemed necessary
for the Legislature to enact specific legislation enabling munici-
palities to rent highway equipment to other municipalities and
districts (eg. Highway Law, Section 142-c, town highway machin-
ery, Section IB3-a county highway machinery, Village Law, Section
89, Subdivision 40-a, village highway machinery).
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments or the State government only. Neces-
sarily, therefore, the foregoing must be considered as having been
rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is not to be considered a
formal opinion of the Attorney-General.
February 18, 1949
JOHN W, WHITELEY, Village Attorney, Ticonderoga.
VILLAGE LAW, SEo'rION 89(11).
It does not appeal' tlmt'a village attorney is a village officer.
This will acknowledge receipt or your recent letter in which you
ask if-a village attorney is a 'Public officer who as such may verify
an answer on behalf of the village. \
I am enclosing herewith a copy of my informal opinion to
Morton Lexow, dated October 27, 1943 (1943 Atty.-Gen. (Inf.)
202) indicating my view that .a village attorney is not a public
officer.
While since that time the Courts have suggested that the office
of village attorney is an independent position (Pinkus v, V iUage
oj' JIM'kimel' 182 Misc. 546, ·aff'd 268 App. Div. 882, aff'd 294
N. Y. 719), 'I doubt that a village attorney could even now be
considered a public officer.
 18 INFORMAL OPINIONS W 'l'HE A'l'l'ORNEY-GENERAL
It ~ollows in my opini.on that an answer served on behalf: of
tl.le vIllage should be verified by a proper village officer, not tho
vIllage attorney.
. The Attorney-General is authorized by law to render legal ad-
VICe to ?fficers and departments of the State government only.
N ecess~LI'lly, therefore, the foregoing is rendered informally all d
unofficially because of the At~orney-General's desire to be helpful
to you, It IS not to be considered a formal opinion of the At-
torney- General.
February 18, 1949
NIuRRAY 1. DANN, "Village Attorney, Johnson City.
EU:C'~'IO,N LAW, SEC'I'IONS U()-a, 143-LIMn.'A.'l'IONS ON 'l'HE RIGH'I! '1'0 DEsra-
1\A1E OR NcnnNA'l'E PARTY CANDIDNrES-SPIWIAL PROVISIONS An'ECTINO
UNOF"ICIAI. PRIMARIES IN CI'l'IES AND TOWN AND VII,LAGE CAUCUSES.
}. person ot.hel'wise q unlifled may be nomina ted as a candidate for viJJa re
°fi.htcJ,e, at, ~ partJ .cancus despite the filet: tlmt lIe is not an enrolled melllh7.1:
o: 10 pru ty ma]nng sur-li 110111111lltion. .
. ,I am replying informally to your letter of February 14, 1949,
<1S the Attorney General may officially advise only the officers of
the State. . .
1> ~cction 136-a (being what is popularly known as the "Wilson-
.a cuia law), was added to the Election Law by Chapter 432 of
:11e Laws of 1947., It had no connection with the subsequent
dmendme!It 0/ Elec~l?n Law § 143 by Ohapter 59 of the Laws of
~948, w~:lCh 1ll adchtloY;l to makin;g Some other changes which are
immaterial to the question you raise, provided that
'~.No pe,rson sl;all participate in $>K'~ a caucus for the nomina-
tion 01. c~ndidates for town or village offices" respectively,
unless he IS an enrolled party voter" etc. ' February 28, 1949
To "pal'~icipate" according to '\Vebster is, "to have a share ill
comlllon. WIth others." The person who is nominated by a party
caucus It not, because of that fact, a participant therein. Ail
IUlen,rolled voter cannot be the chairman, secretary, or one of the
tellers at such a ..caucus, nor can he attend the same and there
l)l'op?se Or argue III favor of the nomination of any person as the
candidate of such party, nor ?an he vote at .such caucus. Any or
1~hese acts would clearly constitute the participation forbidc1eI~ by
the s:atute. But there is nothing in the statute to prevent ail
1111e~rolled voter, or one enrolled with another party beine
~lOIllln~:ed as, ~he canc~idate of the party holding' sUel~ 'CaUCl1H~
If. he IS other WIse qualIfied to hold a vlllao'e office under Villa (l'C
Law § 42. " ' . ',."
February 21, 1949
B01l..RD OF ELECTIONS, Genesco.
INFORMAL OPINIONS OF 'l'HE },'I"l'ORNEY-GENERAL 19
Vn,LAGE LA.W, SEC'l'IONS 56, 139, E'r SEQ. 348 (4).
Although a villa,ge hoard of trustees may on its own motion submit a
proposition to annex tcrrttory to the village, unless 11 petition to that effect
is submitted pursuant to the provisions of either Section 56 or Section 348,
sub. 4 of the Villnge Law, there is no dutyupon the trustees to submit the
matter to a village election.
This will acknowledge receipt of your recent letter wherein you
inquire if a resolution of a village board of trustees annexing
territory to the village must be submitted at a village election.
Section 56 of the Village Law deals with certain propositions
which may be submitted by the board of trustees on its own motion
and shall, be submitted if a petition to that effect is presented.
Included is a proposition to "extend the boundaries of the village."
I note that similar language is .used in the section heading of
Section 348 of the Village Law which sets out the procedure by
which territory is annexed to a village. Subdivision 4 thereof
provides that a resolution to that effect is subject to permissive
referendum. Reading this subdivision with Article 5-a of the Vil-
lage Law which deals with permissive referendum and Section 56
of the Village Law, I conclude that the annexation of territory
need not be submitted at a village election unless (a) a petition
to that effect is submitted pursuant to the provisions of. Section
56 of: the Village Law or the trustees on their own motion have
determined to submit such a proposition or, (b) a petition re-
quiring that the same be submitted is presented pursuant to the
provisions of Article 5-a of the Village Law.
The Attorney-General is authorized by law to render legal ad-
vice to officers and departments of the State government only.
Necessarily, therefore, the foregoing must be considered as having
been rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is not to be considered
a formal opinion of the Attorney-General.
S'rANDIJ1~Y DREJZA, Utica.
4·,
GJllN.)jatAI, CPl'y-IJAvV, AWrIc'L:I!,
A city may adopt a plun.lhing cod.e providing thai; 110ne hut ma~tel'
plumbers Iieensed un<101' the CltJ plumbing «ode may carry on the plumbing
business within the city, '
This will acknowledge receipt of yOUI' recent letter wherein you
inquire if a city may adopt a plumbing. code prOV!~hlg that none
but master plumbers licensed by the CIty authorities may ca:ry
on the plumbing business in the city and that persons seeking
such a license must pass an examination given by the local authori-
ties and have an established place of business within the city.
'I'he Court of Appeals examined the plumbing code of the City
01' Newburgh in Pea. ex reZ. Stepski v, I1arf01'd ,(1941) 286 N. Y.
477 and seems to have answered your queries in the affirmative.
 20 INFOHMAL OPINIONS OF THE AT'l'ORNEY-GENERAL
~ince I do ll~t have a copy of the particular code you question
before me, 0 bviously I cannot undertake to make any comment
thereon,
1 an:. sU~'_e that you are}amilial' with the limitation upon tho
authority of the Attorney-General to render legal advice to officers
~n~ department~ of the State g'ov~rnment only, Necessarily, there-
.~or e, the !oreg'omg must be .conSIdered as having been rendered
lJlfol'mally.and ullot'ficiallJ: because of the Attorney~General's de~i{'(1,
t~ be helpful to you, It IS not to be considered a formal opinion
of the Attorney-General
F'ebmary 28, 1949
1\'IIL'l'ON A. SOLO!llON, New Rochelle.
LOOAT~ J!'JNANtm I,AW, S,~:m'ION 35,00; 'l'OWN LAW, SEC'I'ION 84.
In o;~er to vote upon the issuance of. obligations by tOWIlS under tlm
Local] manee Law a voter must be fin elector of the town and tho owner of'
property assessed upon the last preceding town assossment.roll.
. TI~is will Ilcknowleclgereceipt of your recent letter wherein you
inquire as to the qualifications of voters who may vote on bond
ISsues Issued by a town. under the Local Finance Law, ' whose names were appended thereto was the proper party author-
Section 35:00 (a), (b) of the Local F'inanee Law provides that
bond resolutions m towns are subjeot to referenda in the manner
prescrihed In the Town Law, ' voters in the village, 01' the failure to allow a full day for the
Section 84 of the 'I'own Law deals with the qualifications of vot-
ers at town elections. That section provides in part:
"§ 84. Qualifications of electors at town elections
~.o ~erson shal,l )~e entitled to vote upon any proposition J'Ol'
ralSll1g~. a~))?rOprIaj;ll1g or expending money or incurring' any
town Iiability, or for the sale or other disposition of town
land or property, unless he or she is an elector of the town and
the owner of property assessed upon the last preceding town
assessment-roll; .., .., ..,,,
I.n, m,-y OI?illion this section appli~s to electors voting on tOWIl
o!)hgatl?l1s, issuedundsr th,e Local Fmance Law where such obliga-
tions ale subject to pemnssivs or mandatory referendum. .
. The Attorney-General is authoriz~d byIaw to render legal lid.
VICe to ?fficers and departments of the State government only
NeCeSS~l'lly, therefore.' the foregoing is rendered informally and
~noffi.clal1y. because of. the ,Attorney-General's desire to' be helpful
to you, It IS not to be conSIdered a formal opinion of the Attorney-
General. . .
February 28, 1949
, This will acknowledge receipt of your recent letter in relation
RrcHARD M. SORAGGS, Ellenville.
INFORMAL OPINIONS OF THE AT'l'ORNEY-GENERAL 21
ELECTION LAW, SECTION 143-SPECIAL PROVISIONS AFFECTING UNOFFICIAL PRI-
MARIES IN CITIES AND TOWN, AND VILI,AGE CAUCUSES-VILLAGE LAW, SEC-
~'ION 42-EI,WIBILl'l'Y TO OFFICE.
Party caucuses for the nomination of candidates for village offices are not
required to be conducted in the manner prescribed for primaries.. Voters
thereat must be, but candldates nominated thereat need not be, enrolled
members of the party.
I am replying informally to your letter of February 20, 1949,
as the Attorney General may officially advise only the officers of
the State.
'1'he conduct of village caucuses is governed by the provisions
of Election Law § 143, those portions of which are applicable to
the situation described by you, reading as follows: .
"A notice of any party caucus * * '" for '" * village offices shall
be given by the proper party. authorities either by newspaper
publication thereof once within the * '" village at least one
week '"' * preceding the caucus. * * oil< No person shall partici-
pate in such 'Ii' 'Ii' a caucus for * >II< village offices >II< '"' >It unless he
is an enrolled party voter as shall appear from a transcript
of the enrollment from the register,"
Assuming that the publication enclosed by you was published
at least a week prior to February 18th and that the committee
ity, the protest you describe, in so far as it related to the number
of persons present as compared with the number of eligible party
voting, was apparently out of order, as the law does not require
a caucus to be conducted as a primary election is conducted,
Of course in the interest of orderly procedure the persons present
should have been checked against a transcript of the enrollment
before being allowed to vote, but from the facts given by you it is
evident that the vote cast by one enrolled Democrat did not affect
the result.
'I'here is no law which prevents a person enrolled with another
party being nominated as the candidate of the party holding a
caucus, if he is otherwise qualified to hold a village office under
Village Law § 42, (See enclosed copy of informal opinion dated
February 21, 1949 addressed to the Board of: Elections, Livingston
County.)
February 28, 1949
CECIL ROOD, Hancock.
VU,I,AGE LAW, SIGC'I'ION 200.
Where l\ member of a village volunteer fire department resides in territory
fOl'rnerly protected by the village under contract which territory is later
establisiled as a fire district, it seems that he may not longer continue as a
member of the fire company,
to the present status of certain members of the fire department
of your village.
 22 INF'oRMAL OPINIONS 01" 'l'IIJiJ A'l"l'ORNEY-GENERAL
As I understand it the village had a contract to furnish fire
p~'otection to an area adjacent to the village and certain residents
of that area duly became members of the village fire department
11\11'Suant to the provisions of Section 220, Subdivision 10 of tile
VIllage Law.
The area in question has now been established as a fire district
and t.he village fire department no longer furnishes fire protection
therein,
It see~ns t,o me that ~he meu;bers of the, volunteer fire eompanv
W!lO re~lde ~n th~ terr'I~ory 0:1 the fire district are not residents
of the territory immediately protected by the company of which
~~ is a member" (General Municipal Law, Section 200') and that
If they ar? n?t such residents, they are no longer qualified to hold
mel~berslllp ~n tl~e fire company (d. 1945 Atty-Uel1. (Int'.) U).
"),O~l also ll;~u.lre as t~o the st~tus of some 0:1' the personH, ill
queRt~on who still vote m the VIllage, but do not aetuallv reside
therein", . The Attorney-General is authorized by law to render legal ad-
S~c~ion. 200 ?f the General Municipal Law which deals with
qualifications 0:1 exempt volunteer firemen requires that a volun-
teer fireman he ~ ,"b(~n~l fide resident" 0:1' the territory immediately
protected and "I1 0:1 full age, an elector therein 1'01' a period (;('
five years".
. In discussing the meaning of the words bona fide resident and
11' of full age, an elector therein for a period of five conaecutivo
years, the Attomey-General stated in response to an inquiry on
this matter:
"~ou ~c1vii'1c that theJ:e are two general contentions on
this point .as to hOllahd? residents, some maintaining that
a .man must ~ctually be living and domiciled within the diH-
trtet ~t all tlI~les. to ,qua.~ify) while others claim that if he
votes III the (hstn~t, he IS an elector therein and may :£01'
n~ore. or Jess extensive periods, be physically absent 1'1'0;1; tho
dIstnctfr0ll1 time to time.
'. Informally and 11l1ol'fi;..ially, J. ma.y advise that if a person
IN. an. elec~or .and votes m the distrlct, he must be a resident
of ~aI~l,~hstI'lct" as the m.ectiol~ IJ~w re(Juires that a person
!JO a resident 01. the election district before he can vote. It
IS, . also true tJu~t a person may be a resident of a certain
district ,or locality and yet not be physieully IH'CHont at a 11
tunes 01: the year.
J also. (Tes}re to. point out. that mere temporary absence,
wIth?ut th.e mte~ltlOJl of acqumng another domicile and with
the mtention of keeping said domicile or residence would
not ])J'ec!ude a person from continuing a rel'li<leuee' in the
Ioeah.ty from wJl1~h he was temporarily absent.
It,IS well established tha.t. a person once havinga residence,
c.o,ntr~ues to. have such residence unless and until he estah-
l~~l~es a }esldellee. els?wher? Residence is larg'o]y a matter
oJ mtentlO,n,. yet the intention must be snhRtantiated by the
conduct of the particular individual. A man's l'esiclell~e h;
INI"ORi\IAI, OPINIONS Qlo' THE ATi'ORNEY·GENIDRAIJ 23
each particular case depends upon the particular facts as
applied to the general rules to be applied ill ascertaining
where the actual residence is.
H is my belief', therefore, that It person need riot he actually
living and physically present within the district at all times
to qualify, but I do believe that if: such person votes in the
district, he must be a resident and need not bc physically
present in tho district at all times.
.You should also consider the fact that a person, while
admitteclly a. resident at election time, might chango his resi-
dence after election to some other locality 01' district, as
quite commonly happens, It would then he ueccssary to
apply the general rules 0:1' intention and conduct in ascer-
taining where such person's actual residence was." (1982
Atty.-nen. (In'f.) 189.)
vice to officers and departments 0:1' the State government only.
Neeessarily, therefore, the foregoing must be considered as having
been rendered informally and unofficially because 01: the Attorney-
General's desire to be helpful to you. It is not to be considered
a formal opinion 0:1' the Attorney-General.
February 28, 194D
SGIlUYLICR L. WEED, ViUa,ge Clerk, Babylon.
VlI,I,AUJ~ II" 11', Hl':C"I'ION 4I-QUA r,IlOICA'l'lONS or VO~rERH Nl' Vn,r,AGE Er,I'}(::~'roNS.
Besldonts of that purt of Madison Ban-aeks Al'CU which is outside the
corporate limits of the VilIltge of Snckets Harbor are not onti.tled to vote in
a villug« olcetion held ill aueh village,
I am replying informally to your letter 0:[ Pebruary 24, 1949,
aN the Attorney General may officially advise only the officers
of the State.
'I'he qualifications of voters at a village election are fixed by
Village Law § 41.. In order to vote for an officer, a person must
he qualified to vote at a town election in the town in which he
resides, and must have resided in the village ror thirty days
next preceding such election, .
In order to vote upon a proposition, he IUl~st he entitled to vo:,e
1'01' an officer, and must also be the owner of property in the VIl-
lage assessed upon the last preceding' assessment roll.
If Madison Barracks is', as you point out, whol:ly in the Town
of Hounsfield adjacent to the Village of Sackets Harbor, ~enants
therein might be able to vote :1'01' ~fficers at town electioneor
general elections in such town, provided they met th~ usual re-
quirements as. to citizenship, age. qn~l length of residence. As
.1".0 the disCOl1tmuance of Federal [urisdietion over the area, see
1.946 Atty. Gen. 101.
The :l'act that the property is not 011 the assessment rolls 0:1' the
Village of Sackets Harbor or of the Town of Hounsfield, and does
24 INli'ORlVIAL OPINIONS OF THE AT~'ORNEy-GENERAL
not have access to the village water system or sewer system is
immaterial.
No one who has not resided within the corporate limits of the
village for at least thirty days may vote at a village election.
March 3, 1949
lVIANFoRD H .•JEROME, Commissioncr of Elections, Watertown.
VU.I,,\Gl' LAW, SEC'l'ION 53, SEc'rloN 53-a-ELEc'1'ION LAW, SEm'IoNs 67, 83(2),
87, DO, HI, NOMINA'l'lONS FOR YILLAGl~ OFFICE.
Any determination as to the vnlidlty of a nomination for a village oJ!ieo
must, ill the first instance, be made hy the village clerk.
I am replying informally to your telegram of March 11, 1949,
as the Attorney General may officially advise only the officers of
the State,
You ask me whether the village clerk or the board of trustees
functions as a board of elections in determining questions as to
the validity of nominations for village offices. . to this method, there appears to be no statutory requirement that
Under applicable provisions of the Village Law (§ 53) and of
Election Law (§§ 67, 83(2), 87, 90, 141), it is evident that, ill
respect to village elections held at times other than the date of the
general election, the village clerk possesses all the powers and
performs all the duties respecting such elections which are given
to boards 0"1! elections in respect to general elections, with the ex-
ception 0:1' the appointment of inspectors, and the canvassing of
the returns, which latter duties are performed by the village board
in addition to the designating of polling places, the fixing of the
hours of the election, the appointment of election inspectors, and
other duties of like character.
If a review of the acts of either the village board or the village
clerk is sought, the procedure therefore is governed by the provi-
sions 0:[ Village Law § 53-a.
It would therefore appeal' that any determination as to tho
validity of a nomination for a village office must, in the first in-
stance, be made by the village clerk.
March 11, 1949
EDWARD II. INNET, Yillage Attorney, Hastings-on-Hudson.
Vn,LAGE LAW, SEOTION 51, SECTION 53-a.-YILLAGE ELEOTIONS-INSP~JO'rORA 01"
ELEO'l'ION-.TVDICIAI, REVIEW ()Jl' MAT~l'ERS RET,ATING TO "VII,I,AGE BLEO'l'IONS.
Electe(l village officials are not disqualified to serve as inspectors beeauso
candidates for office, OJ' to '80c111'e signatures to nominating petition.
Ohief of police is not disqualified from performing police duties at villllgO
elections because he attended and served as secretary at meeting at which
nominations were made, 01' is related by marriage to candidates.
No law requires order of names on ballots to be determined by lot.
Action taken to invalidate nominating petition is governed by "Village Law
§ 53;11 and Election Law Art. 14. . a formal opinion of the Attorney-General.
I am replying informally to your letter of March 7, 1949, as the
Attorney General may officially advise only the officers of the
State.
INli'OHMAfJ OPINIONS OF 'l'lIE A~"I'OHNEy-GENERAL 25
As your village constitutes a single election district, t~e trustees,
mayor and clerk act as inspectors of election under .Vllla~e Law
§ 51, and neither the mayor nor the trustees are disqualified to
act as inspectors of election by reason of the fact that they are
candidates at such election (1911. Op, Atty. Gen. 543).
'I'he fact that the village chief of police attended the meeting
at which the candidates 0:1' the Progressive Party were selected, or
acted as secretary thereof, or ,is related by mar~iage ~o, the. present
mayor would not in and of itself appear to disqualify hm; from
pel:J'or;nillg such police duties at the village .election as .h.e might be
called upon to perform under varIOUS applicable prOVISIOns of the
Election Law,
Present village office holders are not disqualified from procuring
signatures upon nominating petitions.
I understand that it is the custom in many villages wh.ere all
nominations are made by petition, to, determine the order or, no~m­
nations upon the ballot by lot. While there IS no le~al ohjection
it be followed. (See informal opinion of Febru.ary.1, 1949,.1.0 the
Village A ttorney of Hoosick Falls, copy of which IS herewith en-
closed) . . .
Any action taken to invalidate any position would nece~sarlly
be governed by the provisions of Village Law § 53.a and Article 14
of the Election Law.
March 14, 1949
.Tor-IN OSnOItN, Sloatsburg.
TOWN LAW, SECTION 34.
'I'here is lIO authority for the appointment of 11 deputy-town comptroller.
This will ackl1owle~lge receipt of your recent letter in which you
ask H a town board may appoint a deputy comptroller.
I am in agreement with your view that alth?ugh deputie~ .t? a
town clerk may be appointed (Town Law, Section 30, Subdivision
10) as well as a deputy to the collector of taxes (Pown Law, ~eetlon
35, Subdivision 2), there appears to be no statutory authority for
the appointment of a deputy town comptroller. .
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only, Ne~es­
sadly, therefore, the foregoing m~st be considered as having
been rendered informally and unofficially b~cause of the Att?rney-
General's desire to be helpful to you. It. IS not to be considered
March 14, 1949
J. F. HEAWORD ROBINSON, JR" Schenectady.
26 INFORMAL OPINIO~S OF THE ATTORNEy-GE~ERAL
GENERAL MUNICIPAl, LAW, SEOTION 205; WORKMEN'S COMPENSATION LAW, SEC-
'I'ION 3.
There appears to be no authcrrty for the expenditure of village funds to
purchase insurance to provide benefits for its firemen in addition to the
Y.illage providing coverage underGen. Mun. Law and Workmen's Componsn-
tion Law.
'I'his will acknowledge receipt of your letter of March 7th to the
Attorney-General. You inquire if a village may procure insurance
for the members of the volunteer fire department of the village
which insurance is to afford coverage and benefits to the firemen
in addition to the insurance coverage and benefits authorized
by Section 205 of the General Municipal I,Rw and the Workmen's
Compensation Law.
'I'his reply will, of course, also be an answer to an identieal Ietter
~hi~h you ,,:rote to the Comptrollei- on the same day posing a
similar question,
I know of no statute which authorizes the expenditure of vil.lage
funds to purchase the additional insurance in question and in the
absence thereof, 1 doubt that village moneys may be so expended.
YOUI' request for an informal opinion indicates your knowledge
of the limitation upon the authority of the Attorney-General to
reuder Iegal advice to officers and departments 0:1' the State govern-
l1!ent ' only. ~ eccssarily, therefore, the foregoing must be con-
sld~rcd as having been rendered i.nIormaUy and unofficially with a
desire to be helpful to you, It is 110t to he considered a formal
opinion of the Attoruey-G eneral.
11'131'eh 14, ]949
Ogoncm L. ORElmS1'EIN, Village Atlo1'lte]j, Mineola.
'rOWN LAW, SlCONONS 23, 33.; EnuCATION I"AW, Sl~m'IONs 2102, 2103.
If otherwise qualifled, then assessor may serve at the same time as a mem-
ber of n board of education.
'I'his will acknowledge receipt of your recent letter in which you
inquire if a town assessor may properly serve at the same time
as a member of a board of education of a union free school dista-iet
within which the town is located.
A person may hold more 1:11an one public offlee at the same time
providing there is no constitutional or statutory prohibition or
incompatibility preventing the holding of said offices by the same
person (1943 Atty. Gen. (InL) 50). I find no constitutional bar
in the present instance and the statute dealing with the ineligibility
to the office of member of a board of education of certain persons
holding other positions (Education Law, Section 2103 ) contains
no prohibition here applicable.
Although a town assessor by statute performs certain duties in
behalf of a school district Crown Law, Section 33, Subdivision
2), I do not regard the offices of town assessor and member of a
board of education incompatible and conclude that they may be
INFORMAL OPINIONS OF THE Arf'fORNEY-GENERAL 27
~leld by t~lesame person at the same time assuming that the person
IS otherwise qualified (Education Law, Section 2102).
The Attorney-General is authorized by law to render legal advice
to ?fficers and departments of the State government only. Neces-
sarily, therefore, the foregoing must be considered as having been
rendered informally and unofficially with a desire to be helpful
to you. It is not to be considered a formal opinion of the Attorney-
General.
March 14, 1949
JOSRPH DE GREGORIO, Central Valley.
GlCNlCRAL MUNICIPAL LAW,SlCC'l'ION 77-b; TOWN LAW, SEOTION 102.
Before a town officer may attend a convention of municipal officers at
town expense, he must receive authorization therefor by his town board,
pri'Or to his attendance thereat. .
'I'his will acknowledge receipt of your recent letter in which you
ask if a justice of the peace must secure the prior authorization of
the town board of the town of which he is an officer before he can
attend a convention of municipal officers such as the annual meet-
ing of the Association of 'I'owns at town expense.
Section 77-b of the General Municipal Law deals with the con-
vention expenses of municipal officers and employees. That Section
provides "Such authorization must be by resolution, (of the board)
adopted prior to such attendance, duly entered in the record of the
proceedings of the board." ,
It follows that the answer to your question is in the affirmative.
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing must be considered as having been
rendered informally and unofficially because of the Attorney-Gen-
eral's desire to be helpful to you. It is not to be considered a formal
opinion of the Attorney-GeneraL
March 21, 1949
]'iNU BROWN, Justice of (louri of S1)ec1:al Sessions, Mohegan Lake.
ALOOHOLIC BEVERAGE CON'l'ROL LAW, SEC'l'lON 128; YILLAGE LAW, ART. 7-A-
MlCi\lBERS OF MUNICIPAL BOARDS IN YU,LAGES IN WESTcnlCSTER COUN'l'Y-
IN'l'EREST IN MANUFAC'l'URE OR SALE OF ALCOHOUC BEVERAGES.
It appears that members of village municipal boards functioning as police
commissioners in villages in Westchester County may not be intercsted ill
the manufacture 01' sale of alcoholic beverages.
I have your letter of March 17 inquiring whether Section 128 of
the Alcoholic Beverag-e Control Law, which provides that certain
officials shall not be interested in the manufacture or sale of alco-
holic beverages, applies to members of the municipal board 01' board
of assessors of your village.
As you appear to be aware, the Attorney-General is not author-
 28 INl"ORMAIJ OPINIONS Ole i'IIE Ai"l'ORNgy·Ch:Nml.AL
ized to give legal advice to other than agencies oJ' the Stat.e govern.
ment, so that I am unable to furnish you with a specific nnswer to
your problem. Informally, however, I call your attention to Article
7-A of the Village Law, which governs all matters eoncerning police
departments in all villages in the county of Westehester, HeetiOll
199-k of which reads as follows:
"Whenever the term 'municipal board' is used ill this artiel«
it shall be construed as referring to a muniuipal board, lwtillg
as police commissioners of a village, created as provided by
section sixty-three of this chapter."
Accordingly, while Section 128 of the Aleoholie HevlU'llge Control
Law does not include members of a village municipal board as
such, at the same time it would appear that if' you r(\fer to a llllll:i(!i.
pal. board fUl~ctio~lill.g as police ('.ommissionors ill the village of
Irvington, whl~h IS 111 the county of Westchester, (see SeetiollS
119-1 et seq.) Its members may not be interested in the manuf'ae,
ture 01' sale of alcoholic beverages. . whether the trustee in question, as steward thereof, is regarded as
In this connection I enclose a copy of an informal expression hv
the Attorney General to the mayor of the village of Intm'lakcHi,
N. Y., dated Mar~h 11, 19~8, to the effeet that village trustees, as
members. of the village poliea department by virtue of S(\('tion 188
of the Vlllag~ Law, may not he interested in the manufuetun, or
sale of alcoholic beverages.
March 25, 1949
MALCOLM M. RoY, TTillage Attm'1W1/, Irvington.
VILT,AGIC LAW, SEO~'IONS 80, 188, ISS'a, 188-e, 188.:f:.
Sav~ ~s acting with other trustees as 1\ board, It villngll trustee has no
supervisron over the members of It village police deplll'tltllHit:
Tl;is will acknowledge receipt of your recent letter in which you
ask If a VIllage tr'~l~tee has "equal power with the mayor with re-
spect t? the superVlslo~l of the local police force". - .
i ~tectlOn 80. of the Vl11ag'e IJaw provides that II mayor of a village
.~ s {Xeautlve officer and under some circumstanceI'! the head of
~r~l~t~~~e epartment. I find no similar authority vested ill II village
While the board of trustees acting as llOlice commiasinnars mav
ad~ft rl~les ~n~ regulations regarding discipline in the police c1~.
l(•
~~~l lUenal 111 a pl:oper case might suspend or dismiHs' a p'olice-
no sfuc 1 power IS reserved to any individual trustee 'I'hese
powers a course 1 l' . . . . "" .", ,
with the th _t ' ~an ?n y )~ exerCIsed by a trllstee when acting'
Shaw (18098)r3{1~~~sD'i~~G~)~n as a board tPea. ex 1'e,Z ll'l(!I'shol! ,v.
t T~ Attorney-General is authorized by law to render legal advice
O? cers and departments o.f the State gOVel'llmellt onl Nece~~
~:~~~~e~fi~~~rr:;ailyle f~degoi~ 1?-ll11st bbe considered as ha;illg b~~n
.
.
unornora y eeausa of the Attorney-Gen-
INl,'oRM:Ar~ OPINIONS or·' 'I'HE A'rTORNEY-GENERAL 29
eral's desire to
he helpful to you. It is not to be considered a Ior-
mal opinion of the Attorney-General.
March 25, 1fl4.D
'l'HFXlDORli; It. .TAI~li'E, Sag Harbor.
BgVlmAGI~ C()N~'ROr, LAW, SIcm'loN 128; Vn,T,AGJol IJAW, SIWTlON
AI.l.:OllOJ,If1 188-
VII,LAGI'; 'l'ltUR'I'li1J':H-IN'PI~ltmS~l' IN SAI,m m' Ar.conorao BrcVICRAGF.S.
Village trustees, hl\Ing members of the village police department, may not
be directly or indirectly interested In the sale of alcoholic beverages.
I have your letter of March 19 inquiring whether a newly elected
trustee of your village, who is also the steward of the local Veterans
of Foreign Wars Club, may qualify and serve as trustee in view of
Section 128 of the Alcoholic Beverage Control Law and Section 188
of the Village Law. I assume that the Veterans of Foreign Wars
Club is licensed to sell alcoholic beverages and that your problem is
interested in the manufacture 01.' sale of alcoholic beverages to the
extent prohibited by Bection 128.
As you are probably aware, the Attorney-General is 1101'. author.
ized to give legal advice to other than agencies of the State govern-
ment, so that 1 am unable to answer your specific inquiry. Infor-
mally, however, and speaking generally, I wish to point out that
the language of' Seetion 128, that police officials may 110t he either
"directly 001' incli1'o(lUy" interested ill the sale of alcoholic beverages,
leaves little room [or distinguishing between actual proprietorship
of a place in which such beverages are sold and more employment
for the purpose of participating in such sales, so that a steward,
like a manager, whose duties include the supervision, ete., of liquor
sales may perhaps be said to be at least indirectly interested. And
looking at the matter conversely, I believe it is of small consequence
.."
that ill your village the trustees have very little to do with the
operation of the police department, in view of their actual status as
ex officio members of that department (Village Law § 188).
I am 110t aware of the informal oral opinion referred to in your
letter. However, enclosed is a copy 'of an informal. expression by
the Attorney-General to the mayor of the village of Interlaken,
N. Y., dated March 11, 1948, to the effect that village trustees, as
members of the village police department, may not be interested in
the manufacture or sale or alcoholic beverages.
M!treh 25, 19/W
S. r. PRA'J''I', llina{je cu-«, Medina.
VILLAGIC JJAW, SEOTIONS 42,47.
A police justice need not be the owner of record of real property in a
village in order to serve as Its pollee justice.
'I'his will acknowledge receipt of your recent letter in which you
ask if a person must be the owner of real property in a village in
order to serve as the police justice.
 30 INFORMAl, OPINIONS OF THE A'I"roRNEY-'GENERAL
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 31
i I find no such pr?perty qualification in the Village La '
42 of that Law WhICh deals with the eligibility to officew. S~ctIon While I believe that a town board has ample power to enact by
0t?cers enumerate:" certain officers who must be owners of ~Illa~e ordinance that defective sewer connections shall be remedied, and,
of real 'prOI?e~·t.v III the village. It then provides "An of le?ori:1 to enforce compliance therewith as with other town ordinances, I
person IS elIgIble to any other villase office" I ' y, qualIfied doubt that it can cause the needed repairs to be made and assess
:nea~Is ~l persol: possessing the qualifications' for ~i~r ~rlllon this the cost thereof to the owners of the property involved.
1ll Sech~n 3 of the Public Officers Law. 0 ce set out The Attorney-General is authorized by law to render legal advice
In 11 VIllage functioning under a special charter it r., .. to officers and departments. of the State government only, Neces-
such real. property qualification. 'Y0u ld .be required. nught be that sarily, therefore, the foregoing must be considered as having been
I aI1.l sure that you are famllrar WIth the limitation rendered informally and unofficially because of the Attorney-
authority of the AttorneY-General to render lee I dvi upon the General's desire to be helpful to you. It is not to be considered a
~nd departments of the State (l'overnmcnt onl ;oa a VIce .to officers formal opinion of the Attorney-General.
fore th f . , 1" . J . N ecessarIly ther
.:', e oregoln(?: IS rene ered m:formal1y and unoff i I ' . e-
desne to be helpful to 1'011 'It I'S not t 0 be eonaic
id eI'ed
c a ly fWIth a March 28, 1949 '
. . . ,. .
OPInIOn of the Attorney-General. a orma] AUGUST MERKENSCIILAGER, Supervisol', Cochecton.
March 28, 1949

H ARkRY J. \YELLEBIL, 8eCl'etarYJ Village Ofj'1'cials Ass . t ' L NEW YORK S'I'A~'E CONWI-'ITm'ION, ART, XIII, SEC'l'ION 12; 'l'OWN LAW, SECTlUN'
broo . ' ' acta tan, yn. 27(1),
The salary of a justice of the peace may be reduced during his term of
Tow"," LAW .. SgUTION 198 ((l)g), 201. office. So long as he holds the office, a justice of the peace is entitled to the
salary fixed for the office whether he performs any of the duties of the office
Whore a connection has alre 1. 1J- 01' not.
b
(~istriet, a town board may 'OI~i;lal!eell ll1ac~e to the facilities of a sewer
tions bc' remedied, ' • J eo, require that defects ill slIch connee- This will acknowledge receipt of your recent letter in which you
ask if the salary of a justice of the peace may be reduced during
'I'his will acknowledge recei)t f T his term of office because of his inability to perform all of the duties
the power of a town board t~ c~rr~~~lr r~ccl~t letter in relation to of his office due to his illness.
Inade to the facilities of a sewer distric~lefectIve sewer connections While the office of justice of the peace is a contitutional office,
Even though such defective conne .' one holding the office is a town officer and does not come within
How ll~tO the lines and mainsof the ctlOI:S ~m~~e ~ur:face water to the provisions of Article XIII, Section 12 of the New York State
as to Interfere with the pr . sewer dlstllct ll1 Such quantity Constitution (1945 Atty.-Gen. (Inf.) 12). 'I'his means in effect,
IT 1 ' f
,I 0" 0 no authority .for tl opel'
t operatiOll . ofL tl re sewer system I that his salary may be reduced during his term of office.
proper!y having defective ~~n~w~. board to cut off the owners' of I n a town of the second class the salaries of justices of the peace
. Se~tIon 201 of the TO'm La,:ec IOns. , of the town may be fixed at different amounts by a majority vote
distrIct's facilities. The town boa~c~als WIth connections to a sewer of the town board (Town Law, Section 27, Subdivision 1): .
°h'ners .of property desirillO' to m Ima y adopt. orders directing the Until such time as there is a vacancy in the office or the justice
t. e ordlllances and regulations it ~ re connectIOns to comply with has been removed by the Court, he is entitled to receive the salary
~Ions can be made. This, it seems las adopted before the connee. fixed for the office and this is so whether he performs any of the
~llsure that connections will be ;~ m:, enables a town board to duties of the office or not (1943 Atty.-Gen. (Inf.) 126), .The Courts
tOm~echons are made, I doubt th P perly made. However, after have held that where a salary has been fixed for a partJ~nl~r office,
,:ec~Ion can enact ordinances wh~~l1a ,town board, acting under this a person filling' the office is entitled to the salary as all incident to
so far as attempting to remedy 11.l effect would be retroactive the office and cannot be deprived of the salary so long as .he holds
m,ade. 'bI aSSUllle from your lett~~f~ftI:e sewer connctions already the office (Gl>ieb v. Oity of Syracuse (1904) 94 App. Div. 133).
plescrl e by order resolut'lOn l~. your town board did not Illness does not provoke a vacancy in office. .
connec~ions might be made. Or ordlllance, the manner in 'which The Attorney-GeneI'al is authorized by law to render legal advice
SectIOn 198 of the Tow L to officers andrlepartanents of the State gov.ernment only: Neces-
boards with l'espect to imn r aw deals, with the Powers of town sarily therefore the foregoing must be considered as havmg been
the~eof provides that such ~oOa~,~{llIent c}:strlcts, Subdivision 1 (g) rende~'ed inforI~allY and unofficially be.cause of the A~torney­
~:'~Ir:ances, rules and regulations ~ay tl adopt, from time to time General's desire to be helpful to you, It IS not to be considered a
I~ riet and the Use of the se or ie operation of the sewe~ formal opinion of the Attorney-General.
plJa!lCe with such ordinances wer SYstem therein. and enforce com-
sectIon one hundred thirty_fiv:UI~~tahl:~d l'eg'ulatiollS as provided in March 28, 1949
or IS chapter;"
HOWARD 1. LEDDEN, Adams.
 32 IKFORl\IAL OPINIONS OF '!'HE ATTORNEy-GENERAL
TOWN LAW, SECTION 12(1).
As used in the cited section, the word "ad.ioin" means that a town must
have a common boundary with a city in ardor to change its classification.
This will acknowledge receipt of your recent letter. You state
that the Town of Penfield in Monroe County lacks a" few hundred
feet of "physically adjoining' the City of Rochester." You say Sec-
tion 12, Subdivision 1 of the Town Law relating to optional
changes in the classification of towns could be. applicable to your
town, if the word "adjoining" as used in that statute might prop-
erly be interpreted as meaning' "adjacent" or "nearby."
You ask my view in the matter.
As you suggest in your letter, lexicographical definitions of the
word "adjoining" have included among its meanings "adjacent"
and "nearby." However, in my opinion as used in the cited Sec-
tion "adjoining" means "contiguous," in the sense ofactuallv
touching or contacting. (cf. Bullock v. Cooley 188 App. Div, 529
Baxter v. York Realty Co. 128 App. Div. 79, see also 2 W. & P:
Perm. Vol. 2 Page 893 et seq.)
I.t seems ~o me that th.e word "adjoining" as used in the Consti,
tution (Art~cle .In, Sec~lOns 4 and 5) dealing with the Senate and
Assembly ~I~tI'l('tS all~l ~n, the statutes referring- to boundaries, etc.
of the ~ll:mc~p.al subdivisions of the State, means that the distriets
or municipalities have a common boundary."
In t.he informal opinion of the Attorney-General to which you
refer III your letter (1~35 !\.tty.-Gen. (Inf.) 421) it was stated
that because of ~he special CIrcumstances involved therein and the
~m'I~ose thc Legislature had in mind, that Section 89, Subdivision
-: .',olIl~ allow a VIllage ,~re. (~e~?rtrnen~ to aid a "nearby" village
which did not actually adjoin the VIllage maintaining the fire
d.e?artment. ThIS ;'Ie:v was, of course, limited to the peculiar
cllC~lInstances therein involved, I call to your attention that the
Legislaturs had alr.eady authorized outside service by local fire
departments III ~ectlOn 209.of the General Municipal Law and that
t~lere ~;as, a.nc,l, IS no. re91~Il·el.nent therein that the municipality
:Ided. adjoin .the municipality affording the aid. This opinion
conesr ned the ?Ite~l section of the Village Law only.
} Your let~er indicates your familiarity with the limitation upon
t Ie authority of the Attorney-General to render Ieaal advice to
offi?ers and departments of the State government bnl; Neces-
s~l'Ily, therefore, the foregoing is rendered informally an'd unoffl-
I~apy because of tl~e Attorney-,Gener~l'~ desire to be helpful to you,
. IS not to be conSIdered a formal 0pII1lOn of the Attorney-General.
Uarch 28, 1949
FRANCES M. BRADLEY, Town Attol-ney, Rochester.
VILLAGE LAW, SErTIONs 125, 126(6).
It seems that the rate of interest on villa
'by the latest expression of the LeO'islattll'e'
Law.
f:
t
S~: ~aJ~sdshSoubld6bo fgoVv~llrued
" . .~ -, u, 0 . I age
This will a.cknowledge receipt of YOUI' recent 1 tt
As you point out, there is a conflict between eSe~tiotl 125 and
INFOIDlAL OPINIONS or THE ATTORNEy-GENERAL
Seci.ion 126-d, Suhdiviaion 6 of the Village Law ~n relation to the
rate of interest which shou}d be col1ecte(~ by a VIllage ~POll, I~r~)p­
erties sold at tax sales. ) on ask my VIews as to which Sect.ion
village officials should follow . .
'When the Village Law was last generallv revised 111 1!l27 hy
Chapter' 650 of the laws of that year,. an a.ttempt ~"as .made l~y
the Legislature to simplify the collection 9f taxes 1I1 VIllages 111
Sections 12, 12-a, 13, 14, 15 of that act. VIllage taxes were to be
returned to the county treasurer and the county was suppos.ed
to advance the amount of such taxes in the same manner as delin-
quent school taxes are now Hd~·an~ed. In. Yillage of J(~mnore v.
Connty of Erie (1930) 252,N. v. 4.37, It was detel'I~nned that
certain provisions of the ]927 Act.Jmposed a financial burden
on the county for other than county purposes and was invalid.
Section 125-a of that Act provided that certain sections of the
Village I~aw. including' ,Secti~n 125, which has ~o?tinued l~n­
amended III Its present form for many years providing remedies
for the collection of unpaid taxes were continued as to all taxes
levied before the Act took effect hut that the new sections added
thereby were to apply to vi~h~gc t~xes le,viecl iI~ the year. 1!l27
and thereafter. After the decision of the Court of Appeals III the
Kenmore case, by Chapter 661 of the Laws of 1930, the Legis-
lature repealed certain sections of the 1})27 Act, amended others
but left Section ] 25 untouched while adding Section 126-d which
seems to have been designed to provide another new method of
village tax collection.
Section 125-a of the Village Law was repealed by Chapter 452
of the Laws of 1939.
Among the resulting confusions is the difference in interest rates
concerning which you inquire.
Judged by the rules of statutory construction, it seems to me
that the latest expression of the Legislature should be followed
and interest collected in accordance with the provisions of Section
] 26-d, Subdivision 6 of the Village Law. Incidentally, that sub-
division allows a board of trustees to determine that the interest
rate shall be 6% rather than 12%.
The Attorney-General is authorized by law to render legal
advice to officers and departments of the State government only.
Necessarily, therefore, the foregoing is rendered informally and
unofficially with a desire to be helpful to you. It is not to be
considered a formal opinion of the Attorney-General.
March 28, 1949
JOHN S. DAVISON, Hoosick Falls.
TOWN IJAW SEC'fION 102(9), (11); VILLAGE IJAW, SECTIONS 181, 190; CODE OF
CRI1vll~AL PROCEDURE, SECTIONS 60, 726, 727, 738, 739, 740-a, 740-0.
It seems that the duty of transportin¥' 'pers.ons c?mmitted. to a county .i~i1
by a justice of the peace for offenses arismg III a VIllage which has no police
justice rests upon the officers of the municipality which is entitled to the
fine, penalty etc., for the offense with which the prisoner is charged.
This will acknowledge receipt of your recent letter.
 INFOHMAL OPINIONS OF 1'HE ATTOHNEy-GENERAL
You state that since the office of police justice has not been es-
tablished in your village that a justice of the peace hears and
determines criminal proceedings and actions arising out of offenses
eornmitted within the village. Inasmuch as both the village and
the town have police departments, you inquire as to where the
duty and responsibility lies for transporting prisoners committed
by the justice to the county jail lor offenses committed within the
Yillage.
The Legislature has commanded in effect, that the costs or crimi-
nal proceedings as between a village and a town should be a
char~e against the I.l1lmicipality ~'eceivi~Ig the fine, penalty, etc.,
all of which IS precisely set out 1ll varIOUS statutes (Town Law
Section 102, Subdivision 9, 11; Code of Criminal Procedure, Sec~
tious 60, 726, 727, 738 and 739).
W.he~e ~ village .has nr 'p~lice justice, a town justice of the peace
h,as Jurisdletion .of all criminal matters occuring with the village.
(:~nerally .the. village has no claim on any fines penalties or for-
~eI~ures of ball eollect~d, unless a violation of a village ordinance -
IS.lll\'?lved. (S.ee Sections of Criminal Code above). If a violation
o~ a Vlllaf.!.'e Ordlllal!~~e is involved, the fine or penalty is the property
ot the village. (Villag« Law, Section 181).
Section 73, Rub(.liv~sion .1. of the Vehide and Traffic Law sets
?ut the nHllllle.r or disposition of fines, penalties and forfeitures
lllVO~Yll1g traffic offenses and also provides for the payment of
services of town and village offieers. . '
.. Where a village d?es ll?t have a police justice, it may recover
fiOIl! the town tl~e ~:ees for .the services of its police officers in
ll~akIllg arrests '\:It1llll the VIllage, if the town receives the fine
( ~own Law., 8ectlO11,102, Suhdivision 9, Village Law, Section 190,
1?34 Atty.. Gen. (Inf.) 490). Where a ease involves violation of a
VIllage Ol'C:lIlun,ee, pe~lalties iu!posedby a jnstice of the peace are
!he prope.Ity o~the vIll~ge (VIllage Law, Section 181), and a town
IS, prohlbIt,ed. from paving for serviees by its officers on account
of SUd.1 off~lses (To":l Law, Section 102, Subdivision 11).
SectIons I~O-a and 140-b of the Code of Criminal Procedure set
~ll1t .the precise amount of fees which justices of the peace police
Ju~tI~es and constables are entitled to receive for· services in
erirnina] matters.
. In vi~w of. the Legislative schema setting out when a town or
villag'c IS entItled .to p~yment for the services of its officers as be-
tw~en ~ach other I,n crnnina] matters and the precise methods by
:vhI~'I: It ha~ provided for the disposition of fines, penalties and
forfcItllre.s, It seems to me to logieallv follow that th d t
tra "1· tinrr ur-i (e u y 0
. n? JO.r I~lg. pnsoners committed by a justice of the peace assum-
b.
~1I~ J~lr.ls~ICtIon 1Il a village which has n? police justice to a county
jail IC~tS upon. the officers of the mUl1lcipality which is entitled
to receive tl~e fine: penalty.or forfeiture of ba'il on disposition of
the offense WIthwhich the prIsoner is charged.
The Attorney-Ueneral is anthorized by law to render leeal advice
to ?fficers and departments of the State government ontr N
sarily, therefore, the foregoing must be considered as ha~ing ~~:~
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 35
rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is not to be considered
a formal opinion of the Attorney-General.
March ,28, 1949
FRAN-KLINT, VOELKER, Village Attorney, Lindenhurst.
Apl'LJ(JA~'ION OF WORKMEN'S COMPENSATION LAW TO ASSISTANT CORPORATION
OOUNSEL OF JOHNSON Ony VILLAGE.
In reply to your letter of March 22, 1949, under the law and
the policy of the office of the Attorney General, official opinions
are rendered only to State department heads. However, the follow-
ing' unofficial observations might assist you.
In determining' the application of the Workmen's Compensation
Lawall the facts and circumstances at a given time must be
eval~ated. It is common knowledge that the relationship between
contracting parties for the performance of personal services usually
vary from time to time. When an accident occurs, the factual
conditions at that time b-ecome the relevant evidence, and the de-
termination by the Workmen's Compensation Board as to the
application of the Workmen's Compensation Law in a large measure
depends upon the specific evidence brought out at the hearings on
a claim. Such factors can not be accurately foreseen. .
The facts outlined in your letter primarily are conclusions and
represent only a portion of the facts which are relevant or which
mizht be produced at a hearing or to which witnesses, other than
vo~rself might testify. I shall endeavor to illustrate. Whether you
~re an ~mployee depends upon the, surrounding facts and circ~m­
stances incidental to your designation or employment as an ASSIst-
ant Village Corporation counsel. The definitions of "employer,"
"employee" and "wages,' a.s I?und in the ~Vo~kmen's Oompensa:
tion Law, naturally have significance. Again, It does not appea.r
whether the Village has elected to cover employees or officers speei-
fled under Group 19, subdivision 1 of ..,Section,.3 .of that Statute
or whether Group 17 is applicable. Group 1/ incorporates by
reference the hazardous employments "enumedted in the fore-
going groups and carried on by a municipal corporation or other
subdivision of the state" and a determination that a~l employment
is hazardous might depend upon the work at the p~rtlCular mom~nt
when an accident occurs. For example, the operation of a gasoline
f vehicle is enumerated as a hazardous employment (Group 7).
Section 32 of the Workmen's Compensation Law prescribes that
no'"agreement by an employee to waive his right .to compensation
shall be valid.
I trust that theforegoing general observations will cast some
light on your problem.
_ March 31, 1949
S'rEPHEN SMYK, .Assistant Village Attorney, Johnson City.

36 INFORM:AI~ OPINIONS OF THE ATTORNEy-GENERAl.J
OIVJf" SERVICE LAW, SECTION 32 i VILI,AGE LAW, SECTION 43.
A retired vlllage policeman may serve as mayor of the village and receive
the salary fixed therefor without loss of his retirement pension or nnnulty,
This will acknowledge receipt of your recent letter in which
you ask if, as a retired policeman receiving a pension from the
police pension ~und of your village, you may properly serve as
mayor of the VIllage and receive the compensation therefor.
Section 32 of the Civil Service Law which deals with the eir-
cUl11star:ces under which a pension or annuity allotted to a person
upon .lns retireme~t' from the civil service of the state or its
municipal corporations must be suspended exempts a person re-
eervmg a salary as (Ian elective public officer". 'Since a village
mayor IS an elective public officer (Village Law, Section 43) it
follows that the answer to your query is in the affirmative.
T~e Attorney-General is authorized by law to render legal
advice t~ officers and departments of the State government only.
Necessarily, therefore, the foregoing is rendered informally and
unof!icially with a desire to be helpful to you. It, is not ,. to be
considered a formal opinion of the Attorney-General.
April 4, 1949
MILTON A. GIBBONS, Mayor, Tuckahoe,
VILLAGE LAW, SECTIONS 89(8), 332; PENAL LAW SEm'ION 1868-CONTItAC~'S
WI1'H VILLAGE-PERSONAL IN'l'ERES'I' OF VILLAJE OFFICER~DESIQNA'l'IONOJ!'
VILLAGE NEWSPAPER. .--
TIle village board of trustees, of which the mayor is a member may desig-
nate as the official,newspaper of the village a publication owne'd and oper-
ated by a corpomtion In which the mayor owns an interest.
YO~ll' letter of ~arch 21 inquires whether the Seneca Falls
Revw"Ue may be designated as the official newspaper of the Village
0,£ Seneca Falls. -r:ou state .th~t this newspaper is owned and pub-
lIshe~ by. the Reveille Publishing 00. Inc., the stock of which cor-
poration IS owned by J. Bouhan and Sons, Ine., and that the Mayor
of Seneca Falls owns twenty-five per cent of the common stock of
J. Bouhan and S!ons, Inc.
. The may?r .of a village is a member of the village board of
trustees (VIl~age Law § 87) and that board is empowered to desig-
nate the official newspaper of the Village (Village Law § 89 [8] )
Although Sectior;?32 of th.e Village Law and Section 1868 of th~
P.ena1l!aw prohibit a public officer from having any direct or in-
direct ll1teres~ m a :ontract with the village made by him or by
a board. of w:hrch he IS a I!lember, those sections have no application
to the situation about WhICh you inquire. Section 89 subdivision 8
of ~he Village L~w, ~uthorizing the village board' of trustees tJ
designate an official VIllage. newspaper, was amended in 1946 (TJ.
1,946, c. 3~7) to exempt this section specifically from the prohibi-
tions oLVrllage Law § 332 and Penal Law § 1868. The provision
added to Seetion 89, subdivision 8, by the 1946 amendment is as
follows:
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL . 37
"If any officer or employee of the village is interested either
directly or indirectly in any newspaper, notwithstanding the
provisions of section three hundred thirty-two of this chapter,
.such newspaper may be so designated and the provisions of
section eighteen hundred sixty-eight of the penal law shall
not apply to such officer or employee."
Accordingly, the fact that the Mayor of Seneca Falls appears
to be indirectly interested in the Seneca Falls Reveille does not
prohibit the Board of Trustees from designating that publication
as the official Village newspaper.
As yon are no doubt aware, inasmuch as the Attorney General
is not authorized to render opinions to other than the heads of the
departments and agencies of the State Government, acting in their
official capacities, the foregoing must be deemed to be entirely
informal and unofficial, given in the desire to be of assistance to
you.
April 4, 1949
DOYLE AND MIDAY, VilLage Attorneys, Seneca Falls.
INCOMPA'l'IIlILITY OF OF'l"ICEA-JUS'l'IOE OF 'l'HE PEACE-MEMBER OF THE BOARD
m' EDUCA'l'IO:N",
Thero is no incompatibility between the offices of justice of the peace and
member of the Board of Edncation.
I have your letter of April 5, requesting to be advised whether
a justice of the peace of the Town of New Castle may simul-
.taneously Serve as a member of the Board of Education of the
Mount Kisco School District. '
It is not within the province of this office to render opinions
to or advise others than officials of the State Government. Informaly
and unofficially however, I may say that in the absence of any
specific statuto{'y prohibition, there is no legal ob~ection to, a
single individual holding morethan one pu?lIc offi.~e If the dut~es
of the two offices are in no way incompatible Since the duties
and responsibilities of a member ?f the Board ?:E Education do
not appear to conflict or overlap III any way WIth the duties ~:f
the office of justice of the peace, I am unaware of any reason
why the same individual may not simultaneously, occupy both
positions. '
April 11, 1949
ROBERT C.ORR JR., Clerk, Board of Education, Mount Kisco.
TOWN LAW, SECTION 291.
Save as provided ill cited section, t!181',e appears to be no, authority for
the ltppropl'iation of, town funds to aid m the care and mamtenance of a
privately owned cemetery under the control of trustees of other corporate
body.
This will acknowledge receipt of yonrIstte» of April 9th whe~e­
in. you ask if the offices of justice of the peace and village police
 38 INPORMAL· OPINIONS or THlU A'l"rORNgY-GENlmAIJ
jus Lice are incompatible. There is enclosed. a c.opy of: an informal
opinion of the Attorney-General to E. '1'. Parish dated li'ehruary
24, 1947 (1947 Atty.-Gen, (Inf.) 13) answering this query in the
negative. . .
You also ask if town funds may properly be appropriated to aid
in the maintenance and care of what I assume is a privately owned
cemetery the control of which is vested in trustees or other COl'.
porate b~dy.. Unless a cemetery comes within one o~! th~ throe cate-
gories set out in Section 291 of t~e 'I'own Law which llnY()S~~H cor-
tain duties upon town boards with respect to eemeteries III the
town, I do not believe town funds may be so expended (cf. ] D4;j
Atty.-Gen. (Inf.) 152).
The Attorney-General is authorized by law to render legnl advice
to officers and departments of the State government Oil lv. N(l('os-
sarily, therefore, the foregoing is rendered informally and unoffl-
cially with a desire to be helpful to you. It is not to he eonsldered
a formal opinion of the Attorney-General.
April 18, 1949.
JOSEPH SILVERMAN, 'l.'own Attorney! Keeseville.
ELEC'l'lON LAW, SEC1'IONS 143 AND H4-~1IME ANll PI,Mil" I"OH Jo'rr,INCl PW.l'l'l'IONH
FOR INDEPENDEN~~ NOMINATIONS FOR VILI,AGI" OF~'WJo:f;, '1'0 III" l"ll,I,I',\l A'I'
ANNUAL VILr,AGE ELEC1'IONS.
The provisions of the cited sections, pertaining to eh'l'ti()n~ "Iu-Irl at a
time other than that of a general election", are applil'Hhlt\ in tilt' ('H~(' ()f'
annual village elections by reason of Village Law, § HI). 'l'ho turm "goJl(!l'lll
election" rcfel's to the annual State-wido election hc)!cl ill Nnvemlior.
I have your letter of: April 6, with regard to the applieatinn of
provisions of the Election Law which refer to "general" mill "other
than general" elections, in the case of annual village eleetions, Ape-
cifleally, you, refer to ,§ § 143 and 144 of the Hleetion I JHW regard-
ing the time and place for filing independent nominations fOt' vil-
lage offices, to be filled at the annual village election in AsIHLl'olwll,
Suffolk County, in June of this year (Village lJcLW, § 52), and indi-
cate that you are in doubt concerning which provisions thereof are
applicable in this instance.
While in another connection it has been said that <tAny election
at which there is a general and popular expression of public will,
whether that election be a State, county or eity election, is It gen-
eral election" (lYlnttm' of Wing v. Ryan, 255 App, Div, Ilia, H;7),
that is not the import of the term "general election" as it appeur«
in the cited sections of the Election Law, as used therein, the term
has reference to the election which is held throughout the State
annually on "the Tuesday succeeding the first Monday of Novem-
ber" (Oonst., Art. III, § 8; Election Law, § 191.). Whether a par-
ticular local election is encompassed within the term "other than a
general election", as that term is used in these and various other
sections of the Election Law, depends entirely upon the context
and the application of various provisions pertaining to elections
contained in other statutes.
INl"ORMAI, OPINIONS OF TIlE ATTORNEy-GENERAL 39
Article 3 of the Village Law, pertaining to village elections, is
silent with regard to the time and place for filing indepel:dent
nominations for village offices, to be filled at the annual VIllage
eleutioll. Aeeordingly reference must be made to the "general
provisions of: the Ble'ctioll Law", which are "not inconsisten~" with
the provisiOI!s of the Vill(~ge IJ~lW (Vi1~a~~ Law, § 69). Section 14~
of the Election Law provides, 1Il subdivision 8 thereof, that a peti-
tion for 1I1l independent nomination for office to be filled "at an
election at a time other than that of a general election shall be
filed not later than fourteen days preceding such election". Section
1'14 provides that such petitions for village offices, "to be ~ned at an
election held at a time other than that of a general election", shall
be filed in the office of tho Village Clerk.
Sinee it is not within the province of this office officially to render
opinions to or advise others than Stat~ officers, t~e views ~e;rein ex-
pressed are not to he deemed an official expression of OPlI1lO~, but
are submitted tnformally only, in the hope you and the VIllage
officials may derive some assistanee therefrom,
April 18, 1949
McTJANAHAN, MImRI'l"l' & INGRAHHI:, New York.
TOWN LAW, SFW'l'IONA 3(J(2); 137.
A tOWIl board may not gl'ltut an exclusive franchise to a~yone to peddle
merehandlao from a boat 011 a lako within tho tOWIl} though It may, by ordi-
JIII11(\O, license and regulate such occupation.
'I'his will acknowledge receipt of your recent letter in which you
ask if. a town board may properly grant "a franehise or a gu~ra~­
tee of rights" to sell "refreshments" from a boat on a lake within
the town. I assume yon do not intend to sell :farmprod~ce.
Although a town board may properly regul~te and lICens~ ~1:!-ch
an occupation by ordinance ('fown Law, Section 136,. SubdIVISI?n
2, Section 187) 1 do not believe it may grant an exclusive franchise
:for this purpose to anyone. .. .
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the :to]'eg'oing is rendered ~nformally and ~1l10ffi­
eially with a desire to be helpful to you. It IS not to be considered
a formal opinion of the Attorney-General.
April 18, ID40
lVIAHVIN SO()Io::I~'l~, New York.
'l'OWN LAW, 81',(1'1'101'1 170, SUDDS. 10,12, 22, SEOTION 184; GENJ"RAL MUNICIPAL
LAW Sb~()'l'IONS 20n, 201l·d. .
' . r t . t Manner in which fire protection ,should be af-
:eo~jt~'d R~~~tc~~~l~~I~JIlc :)~ ~~~d tcnitory within the 'l'own outside corporate limits
of Vlllnge within 'I'own.
'l'his will aeknowl~dge receipt o~ your recent \f~;~Je~\~:iat~::
to the manner in WhICh fire protection should be a ' , p
40 INFORMAL OPINIONS OF THE ATTORNEy-GENERAL
tion of the territory of the Town of Sangerfield outside the eorpor-
ate limits of a village within a town.
The town board may establish a fire protection district embrac-
ing all or any part of such territory under Town Law, Section 170.
When established the board may contract with the village trustees
for fire protection (Town Law, Section 184). In this connection
the provisions of Section 209 and 209-d of the General Municipal
Law might well be examined. A fire protection district has no
power to build ponds or erect water towers for use in :fire protec-
tion in the various parts of the town. While a town board acting
on behalf of a fire protection district, may contract for a supply
of water and for the rental of hydrants with a water company 01'
water works corporation (Town Law, Section 184-a), I know of no
similar authority for a town board to so contract with a water
district.
If a :fire district were formed at this time, the commissioners
thereof would have no power to contract for :fire protection (Town
Law, Section 176, Subdivision 22) but would have to organize,
maintain and equip its own fire department (Town Law, Section
176, Subdivision 10) although a :fire district mig-ht contract for a
supply of water and rent hydrants (Town Law, Secion 176, Sub-
division 12).
Provided the amount l;aised by taxation is used for propel' :fire
protection district purposes, i.e., contract for fire protection and
for water and hydrant control (Town Law, Section 184-a), I know
of no limitation on the amount which may be thus levied provided
the provisions of Section 184 of the Town Law are complied with.
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State government ohly. Neces-
sarily, therefore, the foregoing is rendered informally and unoffi-
cially with a desire to be helpful to you. It is not to be considered
a formal opinion of the Attorney-General.
April 21, 1949
HAROLD L. FUEss, Town Attorney, Waterville.
VERICI..E AND 'l'RAFFIC LAW,SEC'l'ION 81(18); TOWN LAW SECTIONS 174 176
(ll-a), AND 176-a-SIRENS-INSTALLATION AND USE O~ MOTOR VERI~LE­
CHIEF ENGINEER OF FIRE DEPARTMENT OF FIRE DIS'I'RICT.
The ehief engin.eer of a fir~ department of a fire district may attach and
use.a Slrel~ on hIS automobile III the course of the performance of his
offleial duties.
I have your letters of March 22 and February 25 inquiring
wh~ther the "chief .engineer of afire district" may attach and use
a sl.ren on hIS car in the course of the performance of his official
duties,
Section 81, subdivision 18, of the Vehicle and Traffic Law per-
mits the "chief or assistant chief of a fire department" to attach
and l~se a siren. in sue:h manner. Although you refer to a person
as being the chief engmeer of a fire district, there is no provision
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 41
in the law for that office in a fire district. The governing body of a
fire district is the board of fire commissioners (Town Law, § 174).
Section 176, subdivision ll-a, of the Town Law provides for the
appointment by the board of fire commissioners of a chief engineer
following the nomination of such person by the "members of the
fire department of the fire district." Town Law § 176-a sets forth
the duties of the "chief and assistant engineer of fire department
of fire district."
In view of the foregoing statutory provisions I believe that the
person to whom you refer occupies the position of chief engineer
of the :fire department of the fire district and, as such, is authorized
by Section 81, subdivision 18, of the Vehicle and Traffic Law to
attach and use a siren on his ear while engaged in the performance
of his official duties.
With respect to your second question inquiring whether any
member of the chief's family may operate the automobile upon
which the siren is attached, I suggest that when such a person
operates the vehicle the siren should either be removed or concealed
by case covering and, of course, the siren should not be used by an
unauthorized person.
Inasmuch as the Attorney-General is not authorized to give
official opinions to other than the heads of the departments and
agencies of the State Government acting in their official capacities,
the foregoing should be considered as being entirely informal and
unofficial, given in the desire to be of assistance to you in the
consideration of your problem.
April 21, 1949
ANTHONY COZENTINO, Justice of Peace, Town of Winfield.
VILLAGE LAW, SECTIONS 43,60; PUBLIC OFFICERS LAW, SECTION 36.
. A village treasurer . appointed for a term of two official years, may be
removed by a board ~f trustees only in accordance with the provisions of
Section 60 of the Village Law,
This will acknowledge receipt of your letter of April 15th in
which you ask if a village trea~urer may be l:em?ved from office by
a village board of trustees prior to the expiration of the term III
which he was appointed "other than for. cause." .
The term of a village treasurer appointed under Section 43 of
the Village Law is two official years. Any village officer ~ay be
removed by the supreme court pursuant ~o. the P~'ovlsIOns of
Section 36 of the Public Officers Law. In addition, a VIllage officer,
except a president (mayor) or trustee, appointed by the boa!d of
trustees of the village, may be removed by the b.oard. for m~scon­
duct on notice to such officer and an opportunity gwen him to
mak~ his defense under Village Law, Section 60. .
This seems to me to preclude the removal of a VIllage treasurer
by a board of trustees in any other manner. .
The Attorney-General is authorized by law to render legal advice
42 I:KFOIUfAL OPINIONS OF THE ATTORNEy-GENERAL
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing is rendered !nformally and ?-noffi-
cially with a desire to be helpful to you. It IS not to be considered
a formal opinion of the Attorney-General.
April 21, 1949
,VILLIUI L. CLAY, Yi/la{je Attorney, Rochester.
ELECTIOX LAW, SECTIONS 137, 146-LnrrTATION ON THE RIGH1' TO DESIGNA'J'E OR
NOMINATE PARTY CANDIDATES-SPECIAL PROVISIONS AFFECTING UNOFFI-
CIAL PRIMARIES IN CITIES Al\D TOWN AND VILLAGE CAUCUSES.
Party nominations for village offices made at a cancus, in case the nomi-
nees are not enrolled as members of such party, need not be approved by the,
party committeemen representing the villages, section 137 of the Election
Law having no application to caucus nominations.
I am replying informally to your letter of April 15, 1949, as the
Attorney-General may officially advise only the officers of the State.
In accordance with your request, I enclose herewith a. copy of
the informal opinion dated February 21, 1949, addressed to
William J. Flynn, Secretary of the Board of Elections, Livingston
County, Geneseo, N. Y., and a copy of the' informal opinion dated
February 28, 1949, addressed to Cecil Rood, Hancock, N. Y., both
referred to in your letter.
I cannot agree with that part of your letter which asserts that
a nomination of a party candidate at a party caucus held for the
purpose of making nominations for village offices is subject to the
qualifications contained in Election Law § 136-a (now Election
Law § 137) to the extent that such nomination must, in advance of
the caucus, be approved by a majority of the party committee
representing the village.
Present section 146 of the Election Law (formerly § 143) does
provide that, "No person shall participate in such * * caucus for the
nomination of candidates for * * * village offices '* '* * unless he
is an enrolled party voter as shaU appear from a t1Ymscript of the
en1'01lment [rom the reqisier,"
The words italicized above were added to the section by
Chapter 100 of the Laws of 1949, which also renumber the section.
You will note my explanation of the use of the word "partici-
pate" in the text of the statute as set forth in the enclosed opinion
addressed to the Board of Elections of Livingston County.
Election Law § 137 (formerly § 136-a) is clearly limited in its
scope to designating petitions to be used in connection with a
primary election, nominations made by a convention, by a State
committee, by any other committee as provided by the rules of the
party, or by a committee to fill vacancies. I have so held on several
occasions in the past and in this connection I herewith enclose for
your information, a copy of an informal opinion dated May 26,
1947, addressed to Howard W. Robison, Oounty Attorney, Tioga
County, Owego, N. Y., and a copy of an informal opinion dated
TNF'ORlIfAL OPINIONS OI~ THE ATTORNEy-GENERAl) 43
August 14, 1947, addressed to Harry G. Herman, County Attorney,
Westchester County, White Plains, N. Y.
April 25, i949
WlI:JLIAM SCOTT, Yillage Attorney, White Plains.
VILLAGE LAW, SEC'l'ION 200; INSURANCE LAW, SEC'l'ION' 553.
There is considerable doubt that the "foreign insuruuce companies tax"
may be used by a village to repair its firehouse since generally such moneys
must be used for the use and benefit of the fire department.
This will acknowledge receipt of your letter of April 19, 194!l,
wherein you ask if the fire department tax on premiums of policies
of foreian and alien fire insurance companies (Insurance Law, Sec-
tion 553) may properly be expended to repair a floor in the fire-
house in your village.
I assume that the firehouse was erected by and is maintained by
the villaze itself (Village Law, Section 200, Subdivision 3) and is
not the l;operty of a volunteer fire department.
Generally such moneys must be expended for the benefit of the
fire department and may not be expended for a purpose which is a
village charge (cf. U):32. Atty.-.Gen. (Inf.) 498). . .'
I doubt that the repair of VIllage property such as a firehouse IS
the use of such moneys "for the use and benefit of such fire depart.
ment and the company or companies comprising the same" (Insur-
ance Law, Section 553).
'I'he Attorney-General is authorized by law to render legal advice
to officers and' departments of the State government only. Neces-
sarily, therefore, the foregoing is rendered informally and unoffi-
cially with a desire to be helpful to you. I t is 110t to be considered
a formal opinion of the Attorney-General.
April 27, 1949
MURRAY T. DANN, Corporation. Couaiscl, Johnson City.
}<~DUCATIUN LAW, SEC'I'ION 2012-'-VO'1'IlW "~T CI':N'I'HAL ScHOOL .D rs'nu I"1' I~L1'c·
nONS BY OCCUPAN'l'S OF FEDERAl, Honsrxo PH(),IEG'I'.
If the former area of Mn disou Barracks, .1 eff'ersun County, now used as a
housing project operated under control of the 'Nul' .\sscts Administration,
is part of a central school district, residents therein who are pareuts of, 01'
who have residing with them, students at the central school, may vote at
school election, hut those w.ho merely occupy premises in such lIrel~ 1II~IY not
vote threat. If such area JS not a part of such central school district, 111I
one resident therein may so vote (See also 1!l-l6 At ty. Gen. 101).
I am replying informally to your letter of' Ajn-il 12, l!!4!J, liS I he
Attorney-General may officially advise only the officers of the State.
The answer to your ~uei:ltion depends npon whether the a~ea
formerly known as Madison Barracks, and now used as a I~O~lSll1g
project operated under the control of the War Assets Administra-
tion, is part of the centralized school district described by you.
 INFOR:lIAL OPINIONS Ol~ THE ATTORNEy-GENERAL
You say that such district "surrounds Madison Barracks" which
would warrant the assumption that the area thereof was no part
of the district. If that assumption is in accordance 'with the facts,
then it seems clear that a person residing- in such housing develop-
ment would not be a qualified voter at district meetings under the
requirements of Education Law § 2012, subdivision 3, even though
he might meet the requirements of clause (a), (b) or (c) of sub-
division :3 of such section.
If, however, the area under discussion is part of the school dis-
triet, a resident therein who meets the requirements of either clause
(h) or clause (c), would be a qualified voter whether the area is or
is not part of the district, a person unable to qualify as a voter
under clause (b) 01' (c) could not properly claim the right to vote
under clause (a), for the reason that the right of those qualified
under such clause is confined to the owners, lessees, etc. of "real
property in such district liable for taxation for school purposes"
and you tell me that the school district levies no tax upon the real
estate within the limits of the barracks.
I have heretofore held that the jurisdiction of the United States
OYer the territory embraced within Madison Barracks when its use
for military purposes ceased, reverted to the State ~f New York
(See 1946 Atty.-Gen. 101).
If the forlper barracks area should, by appropriate action, be in-
('orp~rated lJl the centralized school district, then all residents
therein who. are found quali~ed. under Education Law § 2012,
would be entitled to vote at a district meeting.
Apri128, HJ49
I). R. ROBINSON, Sacket Harbor.
V1I.1•.\UE LAW SE;)'J'IOKS 200(5), (6), (10),202,204 205· GENERAL MUNICIPAL
LAW, SECTION 200. ' ,
. Where ~ village fire department furnishes fire protection to territory out-
Side the ,,!lJage, and the trustees thereof have by resolution approved the
membership ~f persons residing i~ such territory in the village fire depart-
ment, such members 1JI good standmg maJ' not be excluded from the depart-
ment b}: a later re~(IlutlOn of the trustees for nou-residence in the village
alone. Snch nOIl-!"l'Sl(ll'llt memhers may hold oflice in the village fire depart-
~ ~ . . .
. This wifl acknowledge receipt of your letter of April 22, in rela-
tion to the control of the membership of the village fire department
by the trustees of your village.
You state. that t!le fire department of your village has, for several
::ea~"S, f~rmsh~d fire vrotection to territory outside the corporate
limits of the VIllage. You advise that the board of trustees has'here-
to~ore resolved that persons residing in the territory so protected
might becom~ members of the village fire departmeI~t. You ask if
these non-residant members may properly hold office in the village
~re department an~ if the village board of trustees may, at this
time, pass a resolut~on barring membership in the village fire de-
partment to non-residents of the VIllage including those presently
active members of the department in good standing.
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 45
In a village having no separate board of fire commissioners, the
board of trustees has all of the powers thereof. (Village Law, Sec-
tion 89, Subdivision 19).· The trustees acting as fire commissioners,
"May by resolution, authorize residents of described territory out-
side the village to become members of the fire department of the
village, with all the powers, duties and privileges of such members,
if such territory is afforded fire protection by the fire department
of the village."
While I do not doubt that the board of trustees may properly
enact a resolution providing that ill the future non-residents may
not become members of the village fire department which in effect
will rescind the resolution already adopted to take effect as to
future membership in the department, I do not believe that the
trustees may now, in effect, expel the non-resident members of the
department because of residence outside the village alone.
These non-resident members were appointed to the fire depart-
ment by the trustees (Village Law, Section 202). As members of
the volunteer fire department of the village they have rendered
service which could be credited upon the term of service required
in order to receive certificates (Village Law, Section 209) which
would entitle them to the status of exempt volunteer firemen (Gen-
eral Municipal Law, Section 200). As volunteer firemen they would
acquire certain rights, benefits and privileges (i.e., Civil Service
Law, Section 22, Subdivision 1) which are valuable and which I do
not believe may be lightly taken from them.
While the trustees have control of the firemen (Village Law, Sec-
tion 200, Subdivision 6) and may remove them (Village Law, Sec-
tion 200, Subdivision 5), I doubt that non-residence alone would
justify the trustees expelling such members or making their con-
tinuance in the fire department impossible.
Of course, a different situation would arise in the event that the
territory wherein the non-resident members live was organized as
a fire district or in the event that fire protection was no longer
afforded such territory by the village fire department (1945 Atty.-
Gen. (Inf.) 74).
Provided the non-resident members of the fire department were
duly nominated and elected by the members of the department and
approved and appointed by the trustees acting as fire comJllissi?ners
pursuant to the provisions of Sections 204 and 205 of the VIllage
Law, I believe they may properly hold office in the village fire de-
partment.
Your letter indicates your familiarity with the limitation upon
the authority of the Attorney-General to render legal advice to ~ffi­
cers and departments of the State government only. Necessarily,
therefore the foregoing must be considered as having been rendered
informallv and unofficially with a desire to be helpful to you. It is
not to be' considered a fOI'mal opinion of the Attorney-General.
May 2, 1949·
RICHARD S. WOODMAN, JTillage Attorney, Waterville.

46 INFORMAL OPINIONS OF THE ATTORNEy-GENERAL
GEllERA!. Bnstxnss Lxw, SECTIOll 32; VILI,AGE LAW, SECTION 89(48), 91(1).
A village llI1Q' nut by ordinance prohibit a crippled holder of a "veterans
license" from hawking and peddling in a village. A licensee, who is not a
cripple, need nut pay lin additional municipal license fee in each munini.
pulity wherein he does business but must comply with all reasonable
ordinunees and regulatious which are applicable to all peddlers alike.
'I'his will acknowledge receipt of your letter of April 26th.
You ask if the holder of a so-called "Veterans License" issued
pursuant to the provisions of Section 32 of the General Business
Law, may peddle ice cream products in a village located within the
county for which the license was issued without securing a lieellse
or permit from the village (Village Law, Section 89, Subdivision
48).
Section nl, Subdivision 1 of the Village Law bars a village from
enacting an ordinance prohibiting hawking' and peddling by a
«rippled veteran holding a license issued pursuant to Section 32
of the (jenera] Business Law.
"A veteran licensee under the provisions of Section 32 of the
General Business Law who is not a cripple, may not be required
to pay an additional municipal license fee in each municipality in
which he desires to do business, but he is required to comply with
all reasonable ordinances and regulations which are applicable to
all peddlers alike." (19:3:3 Atty.-Gen. (Inf.) 844, cf. Ui47 Atty.-
Gen. (I nf.) !l6). . WALTER DAVIS, Malverne..
The Attorney-General is authorized by law to render legal advice
to ?fficers aI~d depart~nents. of the State government only, Neces-
sarily, therefore, the foregoing must be considered as having been
rendered. informally and unofficially with a desire to be helpful to
you. It IS not to he considered a formal opinion of the Attornev-
General. . 60 of the General Business Law at the munielpallty wherem they maintam
May 3,1949
DA\'!D Hor,MAN, Fillage Attomeu, Hempstead.
VILLAGE LAW, SgCTIONS 188·a, 188-h; PUBLIC OFFICERS LAW, SECTION 3.
Appointment of Village Policemen.
This will acknowledge receipt of your letter of April 21 in which
Y~ll, as~ if a village policeman appo.inted pursuant to the provisions
of :::1e('twn 188-a and 188-b of the VIllage Law must continue to be a
resident of the village in order to properly serve as such policeman.
Seetion a of the Public Officers Law and Section 188-b of the
Village Law do raise a question as to whether a policeman ap-
pointed under the provisions of the Village Law need be a resident
of said vi.u~tge at the time of his appointment; the Public Officers
La~v reqll~rlllg that, an~l the Village/Jaw being silent on that point.
It IS l!ossIble to l'eeon~l1e these sections on the basis that although
th~ VIllage .Law requ~re,s that the. six months prior residence re-
quirement may be satisfied by residenes anywhere in the county
that nevertheless, at the actual time of appointment, a candidat~
INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 47
for appointment as village polic.eman must be a ~eside~t of that
village in compliance WIth SeetionB of the Public Officers Law
(1945 Atty.-Gen. (Inf.) 78). If this conclusion is justified, then
it would seem that a village policeman once appointed. mus~ con-
tinue to reside in the village he. serves to pr?~e~'ly contllll~e m the
office. Public Officers Law, Section 30, SubdlvI~lOn. 4 provides that
every office shall be vacant if, before ~he e:x:pll'atI?lI of the term
thereof the incumbent ceases to be an inhabitant, If he be a local
officer, 'of the political subdivision or municipal corporation of
which he is required to be a resident when chosen.
I do not find that this precise question has been examined by the
Courts and I cannot, of course, anticipate what conclusion might
be reached were the matter to be ju}1icially determined. .
I regret that in this particular instance I am unable to definitely
answer your specific question. .
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neees-
sarilv therefore the foregoing must be considered as having been
rende~'ed inforI~anJr and unofficially with a desire to be helpful to
vou. It is not to be considered a formal opinion of the Attorney-
General.
May 3,1949
GgNERAL BUSINESS LAW, SECTION 60; VILLAGE LAW, SECTION 89(52).
A village, may by ordinance, licens~ and regulate jU:Ik dealers doin~ b~si.
ness in the village even though such Junk d~a~ers .he lIcensE,ld under S~Cb~lI
their principal places of business.
This will acknowledge receipt of your .letter of April 26., in
which you ask if a village may, by. ordinance, require a JUl~k
dealer to obtain a license from the VIllage to do business th~relIl
where the junk dealer maintains his principal ~lace of. b~lsmess
(i.e., junk yard) in a municipality outside. the VIllage Illn~ts and
has been duly licensed thereat under Section 60 of the (Teneral
Business Law. , .
That Section requires a junk. ~ealer to obta;m ~ hcen~e ~~om
the executive officer of the municipal corporatlO?,- .m which the
prineipal ' place of business of such Junk dealer IS.located. ~o
local ordinance need be enacted to command obedience to this
Section (1939 Atty..Gen. 1 3 8 ) . . .
Section 89, Subdivision 52 of the VIllage La'Y empowers a. VIl-
lage board of trustees to license and otherwise regulate Junk
dealers. I" 1
'While a junk dealer is required to take out one ieense on y
under Section 60 of the General Business Law, ~nd t~at in the
municipality wherein his principal place of business 1S loc~ted,
that Section "cannot be construed, however, to ex~mpt St1C~ Junk
dealers from any local ordinances which may be in force many
 48 INFOR~[AL OPINIONS OF THE ATTORNEy-GENERAL INFOR11AL OPINIONS OF 'rHE ATTORNEy-GENERAL MJ
l)arti~lIlar t,own or \;illage in which he may seek to buy 01' sell relation to the duties of a single elective assessor in a town of
JI~~k . (WOg Atty.-(le.n. 389. at 392). Dening v. Cooke (1937) the second class.
1L ,:l\IISC. L3 deals ~Ylth a village ordinance licensing junk deal- I assume that you have examined the provisions of Suffolk
ers and may be helpful to you.
County Tax Act (Chapter 311 of Laws of 1930, as amended)
Your let!er indicates your familiarity with the limitation up and that none of the provisions of that special act are here
th~ authority of the Attorney-General to render legal advice ~~ applicable.
(~~.~e~·s and departments of. the. State government only. Neces- Section 21-a of the Town Law provides that in a town of the
sa~ I~J, ther.efore, the foregoing IS rendered informally and second class in which the appointive office of assessor shall exist
offiel.ally with a desire to he helpful to you. It is not t ut:- that the office may be made an elective one in the town. Under
('ollsldel'ed a formal opinion of the AttorneY-General 0 e Section 21, subdivsion 1 of the Town Law, where a town hoard
:\fay 3, J9-W in either a town of the first class or a town of the second class
determine that there shall be but one appointive assessor in the
KOI'AW &; HAFT, Village Attorney:;, Highland Falls. town, it is provided that, "* "" '"' the assessor so appointed shall
possess all the powers conferred upon, be subject to all the obli-
\'n.I.MJE LAW. SEI'TIOX 11H-1lI. gations imposed upon, and perform all the duties appertaining
A village planning board may pro I· .Ithl ld to the office of assessors in towns, and all references in any
iJ~g ~tI'~'ets
narrower than the 'lilinilll~l~~ ;V;~~h' 1~~qll:~~2tr~;:aih~f,~I;;~. show- statute to the 'the assessors' or the 'board of assessors' of towns
'I'his Will acknowledge receipt of, I _ . shall be deemed to refer to such assessor. '"' "" ,","
lation
,
. h t 0 f a vIlIao'e
to tl. re rig .- JOur . etter
ph b
ofd May 2 . 11l re- It seems to me that the quoted language applies also to an
approval of a plat of a snbdivision ~~nl~~d o~~. tO withhold assessor elected to the office under Section 21-a of the TOWIl Law
I note that vou state that the I ' \YI In t IIe Village. as well as to one appointed under Section 21 of that law. Like-
streets which' arc llarrower' thai ~l at IT,l .questIOn. shows certain wise, I believe, in answer to your further query, that a board
by the village. I . ie llUlllmulll WIdth prescribed of review as provided for in Section 21, Subdivision 2 of the
I';ven though thcowner of the' tv i . Town Law should be, continued in a town of second class having
not to dedicate the streets _proper ! III question determines the office of elective assessor with all of the powers and duties
streets (Village Law, Seetiont~/J~:/~b}ICl' aI:d they are priv.ate provided for in thatsectiou.
board may properly decline t~ a : , Je Ir e that the pl~nlllng The Attorney-General is authorized by law to render legal
the county clerk's office. ppr 0\ e sue 1 a plat for filmg in advice to officers and departments of the State government only.
Assuming that there is no tl . '. , Necessarily, therefore, the foregoing is rendered informally and
me that Village of LlInb;'ook ~:.' (~~d~~~e(~~~9)m;~lvec1, It seems to unofficially with the desire to be helpful to yon. It is not to be
be helpful to you. There the 00 't ." r ..
02 N..Y. 300 may
pu~P?se of Article 6-a of the Vilt:, ~'lIC (pag~, 314) that the
considered a formal opinion of the Attorney-General.

nlflIvHlnal owner from lavinc out a~te, .ltaw was .to prevent the May 10,1949
sweet will". . '" - S lee s according to his own HENRY.C. \VEISMANN, Town Coumsel, Smithtown Branch.
The Attornev-General is a tl .' d 1
advice to officers and departlll~n;~I'lze.. . l)' law to render legal
Necess~rily, therefore, the for o- ~. ~f .the State goyernment only. LOCAL FINANCE LAW, SEC'L'lON :l4.00.
lUlOf!iCIaIly with a desire to b~"i:~i'" /sl ren~ered mf?rmally and Save in event of a newly ostubllshed fire district, fire districts may ll?t
conSIdered a formal opinion of tI PAu to J ou. It IS not to be issue tax anticipation notes. A fire district may not borrow I?-0ncys III
anticipation of taxes from the town within which the fire district IS located.
- -.le . ttorney-General.
Mar 10, 1949 This will acknowledge receipt of your recent letter in which
THEODORE R. ,JAFFE, Sag Harbor. you ask if your fire "district may -borrow money in antieip~ti~n
of the receipt of taxes from the supervisor of the town within
which the fire district is located. The answer is in the negative.
TOWN LAW, Ih;eTIONS 21, 21.a. There is no such authority granted to a fire district.
Where, in a town of the second class th Tax anticipation notes, which are the type of borrowing .gen.er-
been established in the town the J e office of elective assessor Ims ally used for this purpose, may not be Issued by a fire district,
pointed single assessor. A b~ard' o~·sess.or h~ all o~ the powers of an ap-
such a town. review s ould hkewise be appointed in save in the case- of' a newly created fire district (Local Finance
Law, Section 24.00, paragraph id).
This will a~knowledO'e receipt of I The Westchester County Tax Law (Article 16, Westchester
e . your etter of April 29th in County Administrative Code; Chapter 852, Laws of 1948, as
 50 INFOR~IAL OPINIONS OF THE ATTORNEy-GENERAL
amended) deals with the levy and collection of taxes in your
county. Section 539 thereof, as last amended by Chapter 81 of
the I.laws of 1949, now provides that town district taxes become
a lien and are payable on April 1st as the tax for that calendal'
year. That Section does, however, contain a procedure 'whereby
a town board may, in effect, advance the date when such taxes
become a lien and are payable to -Ianuary 1st. This, of course
is a matter for your town board alone to determine. If adopted'
it would undoubtedly advance the time you receive tax moneys:
. The Attorney-General is authorized by law to render legal ad-
Y¢ce to ~)fficers and departments of the State government only.
NeCeSS~l'Ily, therefore, .the foregoing is rendered informally· and
llllof!lClally WIth a desire to be helpful to you. It is not to be
conSIdered a formal opinion of the Attorney-General.
}\Iay 13, 1949
J. L. DAVlDSON, Chairman Board of Fire CowmissionC1's, Scarsdale.
HHiHWAY LAW, SEC'l'ION 142.
A town board may construct a town garage subject to the limitations of
the cited section.
rr:his will. ~lCknowledgereceipt of your letter of IVIay 5, 1949.
. r OIl ask If the town bo~rd of your town may purchase a build-
mg lot for the sum of $900 to be taken from town general funds
to pur.chase ,a lot upon. which to erect a town garage.
SectIon 142 of the HIghway Law provides in part;
"Notwithstanding the provisions of article fourteen of the
town law, ~he town hoard of any town may authorize the
town supermtendent to purchase real estate in the name of
the town and e~ect thereon a building for the purpose of
hOUSI?g. and, storing such machinery and equipment, or erect
a building for such purposes on real estate owned 'by the
town, bl~t the total co~t thereof shall not exceed six tho{lSand
dollar~ in t~W?S having an assessed valuation of not less
than eIg:ht nulhOll; dollars, and shall not exceed fifty thousand
dollars III towns In a county containing not more than three
towns, ex~ep~, however, capital improvements may be made
to any bmlchng erected pursuant to this section in towns in
sueh a county provided the total cost of such improvement/;
~n anyone year shall not exceed ten thousand dollars and
III other towns such total cost shall 110t exceed three th~{lsand
dollars WIthout the vote of a town election."
lll:~~c~rdiug .to the latest. information available at the Depart-
is <103 9t4 ~u3dOItO anTd Con)t:'ol, the assessed valuation of your town
' :p. '.'. ,~, ' . h
at remg so, the total cost of the Ior 1 tJ
bUlI(!mg ;aullot exceed $3,000.00 without the vo:: ~f anc ie
eIee.tlon. rhe necessity for holdino a referendu a t Own
avoided by the device of buying land for $1000 OOm maaY t not be
. , . an Ia er con-
INlJ'ORMAL OPINIONS OF 'tHE ATTORNEy-GENERAL 51
structing the garage either piecemeal, year by year, or at one
t'me if the total cost will exceed $3,000.00. It IS necessary to
I tin'rate the total cost of land and building and if such total
~~st is over $3,000.00, a referendum must be held. General town
funds may be used. ., •
The Attorney-General is autliorized by law to render legal ad-
ice to officers and departments of the State government only.
Necessarily, therefore, the foregoing is rendered inf?rmally and
unofficially with a desire to be helpful to you. It IS not to be
considered a formal opinion of the Attorney-General.
May 13, 1949
VINCENT N. ELWOOD, Supervisor, Hancock.
ELEC'fION LAW, SECTION 66, SURD. I-DESIGNATION OF PLACES l'OR REGISTRY
AND VOTING.
Where a town board determines that it is a matter of pl;lblie convenie~ce
and necessity to locate a polling place outside t~e .boundarles of an election
district, it may designate for that VUl'pose ll; b\llldl1l~ 0'Ylled by the town or
a village within the town, located III a eontiguous distriet of such town.
I am replying .informally to your letter of May 3, 1949, as the
Attorney-General may officially advise only the officers of the State.
You ask if it is possible for the town board of th~ Town of SJana-
joharie, Montgomery County, to designate ~ polling place III ~n
adjoining election district, inasmuch as th~re IS no smtabl~ or avail-
able place which the town board Ca!1 designate as a polling nlaee
in a particular election district. " ".
Election Law Section 66, subd..1, provI~es In ~a;t tha~ In. a ?~ty
(emphasis mine) the place so des~gnat~d, ~f ~ .. pu~hc building,
>Ii< >it< .. may be in a contiguous election district , and section 66, subd,
6 provides in part that "if any .. ~ '" town or :village owns or occu-
pies a building suitable for holding an election, there. may ~e as
many distinctly separate polling places lawfully located therein as
public convenience may require." . . .
On February 6, 1946 this office rendered an l1~fo~mal.opl1n?n to
the effect that the polling places of two or more dIstr~cts ~n a milage
may be located in the same public building (overruh:ng 1?97 A~ty.­
Gen. 203 and 13 St. Dept. Rep. (1917) p. 428). ThIS opl1llon IS to
he found in 1946 Atty.-Gen. (Inf.) 9. lam enclosing a copy
thereof. . , 1
It would appear to me that the doctrm~ ~here em~ncIatec :f!la.y
equally be applied to permit a town board,. If It dete~mllles that It !S
a matter of public convenience and necessity, to designate a public
building owned by the town or a village wit~in th~ town, but l~cate?
in an election district contiguous to that in wh~ch. the election IS
to be held, as the polling place for the lat~er. dl~trIct, sucl: board
has power so to do, despite the apparent limitation to a c~ty con-
tained in section 66, subd, 1.
May 13, 1949
BERT H. BROWER, Canajoharie.
 INFORMAL OPINIONS OF THE ATTORNEy-GENERAL 53
52 INFORMAL OPINIONS OI!' THE ATTORNEy-GENERAL
issued, In the case of the Bronx resident discussed above the oriai-
GENEI:,\L BtJSllO:SS LAW, SECTION 32-VETERAN'S LICENSE TO
AlWE OF Dl'I'I,!C'ATli: LICENSli:-ClIA!\GE OF COUNTY OF RESIDE:~~~li:-ISSU'
P nal license was valid within the Oity of New York ;nd at tllC
present time the veteran resides within that eity, so that the legisla-
llC'~nse 10 p~ddle by the New York County Clerk ursuant Issue ,a vetera;n's
, Where a former resident of New York County had been' d tive intention to give veterans the right to peddle within the county
while II resident of New York County but at tIP ti fto the,cIted section of their residence, or, in the case of New York City, the city 0'£
dll~)lieate Iicense to replace his lost ~~destroyed o~~J:al 1phcat~on for a their residence, is satisfied, However, where subseque'llt to the issu-
resl(~ent of, Bronx, County, the New York Count Clerk m cen,se e was a
duplicate license inasmuch as under the stat t y th " ,ay ls~ue such a anceof a license by a county clerk a veteran moves out of that
valid fOT the .city of, New York, ineludin Br~n~ Co~:tl1glllal Blit license was county, or in the case of New York City, out of that city, such
a,ll apphclInt ,IS a resident of a county out~ide
the Cit o~' N ;here such license is no longer valid within the county (or, in the case of New
time of applicatlon for the duplicate license he i y ,e,w ark at the
sl!eh,a duplicate license, he no longer bein 'a r ,s not ehglbl~ t~ r~ce~ve
York City, the city) of original issuance. In that event the veteran
within which his original license was valid, g esident of the jurisdiction may apply for a license to peddle in his new county of residence,
This interpretation is in keeping with the purpose of Section 32 to
issue free licenses to veterans to permit them to peddle within the
,:ete~'an's .license to peddle should be is~ued nbw ~t ier a duplicate
Your letter of March 29 requests my 0 inio hether a dunli
SectIOn 32, subdivision 6 of the General B" t
Y ou, pursuant to
county of their residence, but not elsewhere,
As you are no doubt aware, inasmuch as the Attorney-General is
'~ho, 9at fthse ti~e of issuance of his origin~lsYt:=~sea:~J~r aSv~~~a~ not authorized to render formal opinions to other than the heads
s~on ... 0 eetion 32, had been a resident f N Y I 1 lVI- of the departments and agencies of the State government, acting
SIX months, but who at the time of a I? few f or \: County for in their official capacities, the foregoing discussion must be deemed
li,cense, was a resid;nt of Bronx Cou~f sea ~~ '01' the duplicate to be entirely informal and unofficial, given in the desire to be of
eight months prior thereto, y an lad been such for assistance to you in the consideration of your problem.

~w
Section 32, Subdivision 1, of the General Business L '
that h.on?rably discharged war veterans sh 11 h I provides May 16,1949
dIe within the county of their re 'd a ave t ie right to ped- AROHmALD R, WATSON, Oonnty Clerk, New York.
embraced wholly by a city then sl'tle~ce or h, w~lere that county is
I' , " WI un sue city b '
icense therefor under that section S bd" , , , y pr?curmg a
suance of licenses, without eharze 'b . i\
IVlSIOn 2 deals ,WIth the is-
of the veteran's residence 0 "f y ie cO,u~ty clerk of the county TOWN LAW, SECTION 184,
such a license is residen~e '~i~t tf~ requisites for the issuance of A town board, ill accordance with the provisions of the cited section, may
contract for fire protection, on behalf of a fire protection district within the
least six months S bdi " 6 11n at county for a period of at town, established by the boal'd upon its own motion providec1 the proccec1ings
' : , u IVISIOn authorizes th t I I '
a d uplieate license in the event the " I l~ coun y c er \: to Issue t11el'efor were regularly held,
destroyed, . orrgma ieense has been lost or
This will acknowledge receipt of you» letter of :May 10th in
The purpose of Section 32 £ I
obviously is to give honorabl d'
t ie General Business Law quite
relation to the establishment and operation of a fire protection
peddle ¥oods within the cOl;nt;s~~a~fe~ ,~aI:~Teterans the right to district by a town board,
My reply will, of course, also be answer to an identical letter
c?unty IS embraced wholl r b a ' ell' rest e.nc~ or, where that
hcense issued under Seetio;l 3l'CI{~ then within such city, A
in the instances noted above IS, v~ ic onlY,within the county (or
dated the same day posing a similar inquiry to the State Comp-
troller,
issued, .In
the particular cas~ :b~~~n OU ,for ;vhic,h it
tl:e CIty) wa~ Section 170 of the 1'own Law, dealing with the establishment of
as the license was issued to a resider t '~l~h Yy inquire, inasmuch
fire districts, fire alarm districts and fire protection districts, pro-
vides two methods by which a fire protection district may be
county is embraced whollv b tl \ 0 ew ork County and that
valid for the City of New'yIr.k lfnCr~,of New York, that lieenseis established, Subdivision 1 requires a written petition requesting the
veteran now resides Thus ti I? uqmg Bronx County where the establishment of such a district and Subdivision 2 authorizes the
with~n the jurisdiction wh::e l~~s i~ensee i.nvolv~d ~ere 'still resides establishment of such a district without a petition. if a public
hearing on due notice, has been held before the t?W~l board, ,
duplicate license may be issued bcense IS valid, It seems that a
anee with the requirements of S ~rOl: ~pon the veteran's compli- Unless the town involved is wholly or partly within the AdIron-
ness Law, § 32, u lVlSIOn 6 of the General Busi- daek Park (Town Law, Section 170, Subdivision 3) the consent
of the State Comptroller is unnecessary (1943 Atty,-Gen, (Inf.)
t~eYou further inquire whether m
veteran applying for the d ! ans'Yer would be, the same if Once properly established, a to:vro board ln~y contract for fire
195).
CIty of New York but desired ~oPlI~~~1 h~ense re~ided outside the protection under Town Law, Sectron 184 prov,Ided.there has b,c
en
under the permission granted' t P ,e,m th~ CIty of New York due notice of a public hearing therefor as provided ll1 that Section,
In such a situation I believe t~~t hedorlgl,mal h:ense issued to him.
a up icate license should not be

54 INFOR:\fAL O.'INroNS 0J<' THE ATTORNEy-GENERAL
If the provisions thereof are complied with, I believe that a town
board may properly levy and collect taxes for that purpose whether
the fire district was organized pursuant to the provisions of Suh.
division 1 or Subdivision 2 of Section 170 of the Town Law.
The Attornev-General is authorized by law to render legal advice
to officers and" departments of the State government only. Neces-
sarily, therefore, the foregoing is rendered informally and unoffi-
cially with a desire to be helpful to you. It is not to be considered
a formal opinion of the Attorney-General.
lHa:r 17, 1949
FIUNCIS J .•TOBIN, Fort Johnson.
Tow);' LAW, SECTION 36.
The town board of II town of the second class, may by resolution, deter-
mine that taxes shall be collected by the town clerk.
This will acknowledge receipt of your letter of May 9th in which
you ask if the office of town tax collector may be abolished and his
duties imposed upon the town clerk.
'I'he population of the Town of Rensselaerville is listed in the
latest federal census at 1285 and accordingly, under Section 10 of
the Town Law, it is a town of the second class.
Section 36 of the Town Law sets out a procedure whereby the
office of tax collector or receiver of taxes may be abolished by the
town board in such a town. That Section (Subdivision 1) provides
in part as follows:
"1. In any town of the second class in which the office of
tax collector or receiver of taxes exists, the town board thereof
may by resolution duly adopted at least one hundred fifty
days prior to any biennial town election, determine that said
office be abolished, same to take effect at the expiration of the
term of office to which the incumbent was elected or appointed;
and no such tax colector or town receiver of taxes shall be
elected at any biennial town election held not less than one
hundred fifty days thereafter. Upon the expiration of the term
o~ office of. such tax collector or town receiver of taxes as pro-
vided herem, he shall surrender and deliver to the town clerk
of said town all assessment rolls, books, papers, writings and all
other documents and property in his possession as such officer.
In all towns where the office of tax collector or receiver of taxes
has been abolished, it shall be the duty of such town clerk to
collect and receive all state, county and town taxes and assess-
ments that may be levied in such town and the town clerk shall
have all the powers and be subject to all the duties of a col-
lector with respect to the collection of such taxes and the re-
turn of unpaid taxes, as provided by Article Fou~' of the Tax
Law and not inconsistent with this article. • • *"
Section 36 of the Town Law, dealing' with the collection of
INFORMAL OPINIONS 01<' THE AT'I'ORNEY-GENERAL 55
taxes by the town clerk, should, of course, be exaIlline~ in d~tail by
you, should the office of tax collector be properly abolished m your
town. .
The Attorney-Geneml is authorized by law to render legal advice
t officers and departments of the State government only. Neces-
o ily therefore the foregoing is rendered informally and unoffi-
ol
S~~lly'because the AttoI'lley-General's desire to be helpful to yon.
~t' is not to be considered a formal opinion of the Attorney-General.
May 17, 1949
CARL HAHNE, Town Clerk, Medusa.
VEHICLE AND TRAFFIC LAW, SECTION 15; GENERAl, MUNICIPAL LAW, SECTION
209-c. 1. 1 f
Red lights may not' be displayed on a privately owned motor ve ue e 0 a
member of a fire police squad.
This will acknowledge receipt of your letter. of :M.ay 16th in
which you ask if a privately owned mo.tor v~hIc1c of ~ memb~r
of a fire police squad may display red lights m ans,wermg a fiI:.
Although fire and police vehicles are e~empted .from the d.efi-
nition of "motor vehi~les" as tha~ ~e!'m IS used ~n tl:e. V,ehICle
and Traffic Law (Section 2, SUb~IvIsIon 8) and led lIght.s may
be used by a "police vehicle" (Vehicle and Tr~ffic Law, Sectron 15,
Subdivisi~n 2 (c) ) I do not believe that red lights may be ~lsed on
privately owned motor vehicles of volunteer firemen and ~re offi-
cers (Hi34 Atty.-Gen. (Inf.) 438). The action of the Lsgisleture
in specifying i~l effect, that certain fire and peace offi~ers ~~1 use
red lights on motor vehicles operated. by them (chief, asslStan~
chief of a fire department, county or assistant county fire marshalls
on dutv and sheriff and regular deputy on duty). seems to me eh
effect, to deny other fire and- police ~fficers the ,rIght to use SI~C
red lights on their personal cars (Vehicle and Traffle Law, SectIOn
15, Subdivisiors 2 (c) ). .... . 11 d "bl
Your letter Indicates your fannharIty Wlt1: the so-ca, e .ne
flasher" amendment to Section 15 of the Vehicle and Traffic Law
(Chapter 293, Laws of 1949). 1 d .
The Attol'ney-Genel'al is authorized by law to render lega a VIce
to officers and'departments of the Stategov:el'~nnent only. Nec~­
sarily, therefore, the foregoing is rendered ~nformally and ~o i
ciallv with a desire to be helpful to you. It IS nqt to be consi eree
a fO~Illal opinion of the Attorney-General.
May 20,1949
PATSY C. COLELLA, Albion.
\TILLAGE LAW SECTIONS 81,89(21), 21-a), 333. .
Save i~those villages where a petty cas}: fund has. been estabhshed, g~n~
. 11 th village treaSUl'er may disburae vtllage montes only upon the pnOl
:~~dJ'an; authorization of the village board of trustees.
This will acknowledge receipt of your letter of MaJ' 15th in
 56 INI~ORMAL OPINIONS 01" 'l'HE ATTORNEY-GENERAIJ
relation to the power of a village mayor to authorize the expendi-
ture of village moneys between meetings of the village board of
trustees.
Section 81 of the Village Law which deals with the duties or a
village treasurer provides, in part, as follows:
" § 81. 'I'reasurer.
* * * .No money shall be ~)aid from the treasury ofthe ,;illage,
except pursuance of a Judgment or order of a court, or an
111
audit and allowance by the bOHI'd of trustees and an order
designating thefund, signed by the mayor and countersigned
by the clerk, or 'by an order of a board of commissioners of the
village upon a fund within its jurisdiction, unless the board of
trustees have by resolution or ordinance appointed an auditor
~nc1 determined that all orders shall be signed by such auditor
instead ?f by the Mayor ar~c1 clerk in which event he shan pay
orders signed by such auditor, '1.'he treasurer shall not draw
~ny money so deposited by him, except in pursuance of such
Judgment or order. ;; ,~ *"
Section 89, Subdivision 21 0:1' the Village Law seems to indicate
tl~at the 01.11y iten.ls whieh may be paid by a village treasurer
wrthout prior audit and allowance of the board of trustees are
for the com.pensati.on for services of employees 01' offlcers regularly
engaged by the VIllage at agreed wages 01' salaries by the weel~
mo~th .01' )~eal' a~ld inte~'est and princip,ul on. villags indebtedness. '
Section u33 01: the VIllage Law provides, in part, as 1'0110ws:
"§ 333. Liahilrty on unlawful contracts; failure to prose-
cute
An of[icer 01' person who assumes to create a liability 01'
appropriate money or property of the village without authority
of law, or ,assents thereto, is personally liable for such debt,
?r to t1.e village f'or such money 01' property. '"' >Ii >II A village
IS not liable upon a (l?lltraet m~de by an of'liecr 01' board in
t~e l~~~; ~r ;;~~l behalf o:f: the VIllage, unless it is authorized
With respect to expenditures between meetinzs of the board or
trustees, Section 8~, Subdivision 21-a of the Vnh~ge Law authorizes
tl:e 90arcl to e~tabhs!l a petty cash fund. :r suggest that your village
officral~..e:,amJJle thlS some".'hat. new addition ~o the Village Law
to see If: It would not be 0:1: assistanee to you in' your problem.
I ~loubt. that a. village mayor may declare a motion made at a
meetlllg'. ~f the village board of trustees out of order which seeks
to ~~'Ohll)Jt the e~pe;ndl~UI'e of a sum .0:1' village moneys in excess
of $~5.00, except us indicated above, without prior approval of: the.
board. ' A person may hold more than one public office at the same time,
. The Attorney-General is authorized by law to render lecal advice
to ,?fficers ~llc1 ,c1e~artJ~ents .of t~e State government olJl~. Neces-
sarily, ther e fore, theforcgorng IS rendered informally and unoffl-
INl"ORMAT, OPINIONS OlP TIm A'.r'I'ORNEY-GENEHAL 57
dally with 11 desire to be hel pf'ul to yon. It is not to be considered
a formal opinion of the Attomey-General,
May 20, 194H
O~l'JS H. Brnrr, Mayor, Greenport,
GFoNNRAI, MUNICII'M, LA IV, RIW'fION 148.
'I'he burial ullownnee fol' n veteran iH not affeeted hy life lnsurunee on his
Iife, contuiniug a unmod heJll'fiei:\]'~', regardloss of the amount ofeucl.
Inanrunec.
In your letter of M(lY 24, 1!J4!l addressed to the Attorney General
you ask for an interpretation of the clause "without leaving suffl-
eient means to defray his or her funeral expenses," which appears
in Section 148 of the General Municipal Law.
You make reference to an opinion of this office (48 State Depart-
ment 570; 1933) which stated that a veteran who died leaving no
estate, but having 11 small amount of life insurance, which upon
his death was paid to a named beneficiary, died without leaving
sufficient means to defray his :l'unel'alexpenses. You ask whether
our eonelusiou would he the same, if the amount or such lire in-
surance were substantial.
'I'he Attorney General is authorized by 'law to render legal aid
and advice to officers and heads of departments of the State gov-
ernments only. 'I'heretore, this letter is not to be regarded as an
official opinion but only an unofficial and informal effort to assist
you in your problem. . '
Informally, it is my opinion that the proceeds of a life insurance
policy containing a named benefi~'~ary d~ 110t constitute part. of
decedent's estate. .A vetenan, who dies leaving no estate, but having
life insurance, which by its terms is payable to a named 'beneficiary,
regardless of the amount of such insurance, dies without sufficient
means to defray his funeral expenses within the meaning of Section
148 of the General Municipal Law.
May 31,1949
Jus'r'IN O. FIJANNIGAN, Llss'islanl Oounty .t1ltoJ'ney, Binghamton.
VII,LAGE LAW, SEOTION 42.
Because of a eoncelvablo eoufliet ill duty, it is not believed that the same
'person should act as town attorney and nttorney for a village partly within
tho town.
'1.'his will acknowledge receipt of your letter of May 24th where.
in you ask if the same person may legally act as attorney for a
village and also for a town wherein a portion of the territory
of the village is located.
providing there is no constitutional or statutory prohibition or
incompatibility preventing the holding of said offices by the same
person (1943 Atty. Gen. (Inf.) 50).
 58 INFORMAl, OPINIONS OF 'rIlE A~'TORNmy-GENERAL
While I am mindful of the fact that the Legislature has provided
in Section 42 of the Village Law that "* «< "" no person shall be
disqualified from holding a village off1ce by reason o:r holding a
town or county office. >II< >II< " . " I do feel that the functions of town
attorney and attorney for a village partly within that town might
result in antagonism and a conflict of duty. Conceivably, the ill-
cumbent of one could not faithfully discharge with propriety the
duties of both,
As town attorney he might be called upon to advise the town
board and at the same time advise the village hoard upon the same
question. In addition, there might be a difficult and embanussins
situation arise in the event of. any litigation. I am certain that
as an attorney you can realize the ethical difficulties such dual
representation might pose,
'1'11e Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing must be considered as ha~ing been
rendered informally and unofficially with It desire to be helpful
to you. It is not to be considered a formal opinion of the Attornev-
General. ' 'I'his will acknowledge receipt of your letter of June L1th wherein
June 1, 1949
JOSEPH SILVElUl1AN, Keeseville.
UNEj\rpWYMEN~' INSURANCE LAW, SEO'l'ION 522-'rm'AL UNJ~Ml'r,()Yj\mN'l'.
. It seems from the ~acts pl'esentecl ~hat "call firemen" who are pnid by a
~lty on an h~Ul'I:r basis for such service as they render at iirll~ 01' puinting
fire and ~l'll:fl1(J Iines, are not tol",ny unemployed 011 the days thoy rellclc~r
such service, and are not entitled to unemployment insumnee benefits j'Ol'
such clays. - .
. This will repl? to your l~~ter of May 27, IH49, in which you
l~quest my opimon w?ether call firemen," who arc paid by your
CIty on an hourly baSIS for such work as they perform, are totally
unemployed 011 days when they perform such service and are com-
pensated therefor, so as to be entitled to unemployment insurance
ben~~ts f?r such ~1ays. Your letter also states that these "call fire-
~en .do,m some instance perform work other than fire duties, such
as pallltm~ nrc and traffic lines, for which they are paid on an
hourly baSIS.
,Th: Attorney-General is authoriz~d to render opinions to State
~fficel s and dera~t~~ellts on.!y, but, III order to be of assistance to
J ou, the following IS stated informally and unofficially,
In order for anunemployment insurance claimant to be entitled
~o ?~nefits for a grven day" he must, among' other thing's, be suffer-
ing total unemployment on that day. Unemployment Insuranee
Law § 522, reads as follows:
'Total unemployment' means the total lack of any employ-
(C
ment on any clay, c~used by the inability of a claimant who 'is
cap~ble of ar~d available for wor!{ to engage in his usual em-
ploJ ment or 111 any other for whieh he is reasonably fitted hy
INI"OItMAL OPINIONK OJ" '1'lm A'r'rDRNgY-OENERAT" 59
training and experience. 'I'he term 'employment' as used in
this section means any employment including- that not defined
in this title." (Emphasis snpplied.)
While you (10 not present a very comprehensive statement of the
faets, it would seem, in view of the fact that these call firemen are
paid on an hourly basls for services rendered to your city, they are
not totally unemployed 011 days during' which they render this
service and are paid therefor.
It might he advisable for these claimants to request a hearing,
pursuant to Unemployment Inaurunee I,Hw ~ H20. so that all the
facts may he developed.
June 6, 1!)4D
JOHN .1. Zor,T,lm, Oil!i A t!,onw!J, Uttle li\tlls.
J~llUOA'l'lON LAW, AR'I'IlH.I':!J.
'I'horc ~CWl1lH to Ill'no uuthorltv for 11 sehonl district to rent an unused
fOl'lIlOl' sehoolhuus« slte to It JOIVll.
you ask if a school district lIlay properly rent an unused school-
house site to II town 1'01' recreation purpcses.
A board oj! cdneation is a creature of statute and derives its
powers and duties from tho EducationLaw that created it (Cannon
v. l'olll?uw on-I·7) IHR Mise. nilfi) , I find no statutory authority for
a school district to rent its property for such a purpose as is de-
scribed in your Inquiry. An opinion of the Connnisaioner of Edu-
cation reported in G..j. Htatc Department Reports 222 (1942) simi-
larly douhts the authority to rent I'wlJ()ol district property generally,
'l'he ouly exception seems to be ill Edueution Law, Section 402,
Subdivislon 2.
Al'tiele !J of the Educatlon Law does set out a procedure whereby
a former schoolhouse site may be sold. 'I'hat Al'tide may be helpful
to you in your problem,
• I am sure that ;)'011 are familial' with the limitation upon the
authority of the Attomev-General to render legul advice to officers
lind departments of the State government only, Necessarily, there-
fore, the j'()l'eg'oillg' must be eousidered as having been rendered in-
forlllally aud lllloffildally with a. desire to be helpfn 1 to you. It is
not to be considered a formal opinion of the Attorney-General.
June 10, ID4ll
EMANUEL SCHWAH'l'Z, 'l'oum. lHlol'ney, New York,
Or-NEltAr, BllHrNI~RR LAW, SIW'l'lONS 32 ANll a5-YE'J~JmANS' l'EllDl.rGltS' LICENsr~s
-·IHHUAN()JI] Wi' (lOUN'I'Y OJ,fm]{-ApI'L)()AN~'S' COMl'I,rAN()!~WI'l'I-I LOOAl,
ItD,anr,A'l'IONH.
When an npplieuut for It YotCI1'lW'S peddler's liennse has complied with the
~tatut()J'Y requirement» l:hUl'l'fol', !t county clerk should issue 11, Iieonse, not-
wi th~tl\liclillg tho exiHI:,c\Ilce of lUly' local ordinunces, rules, or regulation,S
govermng' peddlers whleh may he lJl effect; the en:f'orcemcllt of such ordi-
naneea, rules, 01' l'egulatiQll9 is It matter of local responsibility.
 60 INFORMAl., OPINIONS OF 'rIm A'l"I'ORNgy -OJi:Nlo:RA TJ
I have your letter of IVIay Hi regarding the iHHtlfUWC hy yon or
veterans' peddlers' licenses pursuant to Heej'jou :32 of the Genera]
Business Law. You state that in New York City the Department of
Markets has promulgated rules and regulations under the power
granted to that Department hy the Administrative Corle of the
City of New York (§ § 13:36-89.0 to B:Hi-9fi.O), generally rel[llil'iutl,
applicants fo~' ped0J.el'S' licenses who h:1ll<11~' food ])rOdl1<'tl1 to PI'I~
duee a doctor s. certificate that they are f'reeIrotn ally COlUlllllllicable
or inf?ctious disease (Rules aIHl Ht'g'nlatiolls of New Yol'1, City
.Agenl1lcs, Rule 27, p, 4(j2), You further state that liccmlel1 iI181H'.;1
b3T ~he Department ?f Markets are valid only uutil the April ao 1'01-
10Wlll~' the date of ISS1Ullwe (N, Y, C, Adm, Uode § n:W-D1.0) and
that licensees are required to submit new medical certificates upon
each application for renewal
Your ~nquiries ~r~ (a) whether you Iuny require applicants for
veter~ns peclc11,el's licenses W110 intend to handle food products to
sub.mlt ~octors, certificates ' that they arc free from eommunicuhh1
or infectious diseases j (h) whether you may limit the term of such
~ veteran's peddler 's Iicensaissuad by yon to the April ao follow-
ll1~ the date of IssuHnc.e j and (c) whether, if you may so limit the
t~~m, you shol1~d l'eq1Jll',e proof of the appl,ieUJ~t's residence (Gell-
eral Business Law § 32[2]) upon each applICatIOn for l'C'IWWflJ.
~ ,b~lie,,:e that eac'l: of PIC. above stated questions should be
answ e1.e~1 in the negative. SectIOn 32 of the General Businesa Law
authorizing ~'ou to. ISSue vete~ans' l~eddlers' licenses, specifles th~
~Olfd~tlons WIth wh;ch an. applicant for such a Iieonse must comply
e Ole .be ll1aJ: receive a license from you, I do not believe you ha,;e
a~llthollf'ltYbto Impose additional eonditions to those eXl)l'e~'<')Y Pl'O
Vleee . or y law. . . , . ""'" . -
When, an applicant has complied with the statutory 1'0 uire.
t~~~is~l:i~eo~Ol,lll~J~c{~rk should ~ssue a license, l1otwithstu'ndin~ any
l le~na IOU eoncel·l.l.lllg' pedc.llers which mav be in e;frcc.t'
Altl lOugh. Section 35 of 1'1 C' '·1 B ' ., ..
such licensees shall be S~l .le~.en(~la uS~Jless Law provides that
.. ' I
tl'011 of a munierpa bjeet to any ordinance, by-law or regula
eorporati ' I t' 1 .' '. ,-
within the limits of such c~ 1O~1 tl.e a ~~lg to l,awkers ,and peddlel's
ordinances byla Ir~Ola Ions, eomphauce WIth. app1ilmble
, ws or regu atlons of the C't l' N Y '
ter for local enforcement and I . , . 1 yo. ew Ol'k lS a mat-
£ol'mance of duty as set forth i~ll~nl~lt}a~?,/ofeffec\ upon ~'olll' 'pcr-
Law, cc ,1On ,)... 0 the (Teneral Bllsmoss
As you are of course aware th f . . ;
deemed to be entirel··· inf , e .oregomg' ehscusslon mnst be
torney-General is no{auth:~~d~1d Ul~~~a~ inaslll:lC~I as the A t-
than the heads of the departmel l 1'0 rel~ el .01l:11al OpllllOllfl to oHler
el'llment, actlJlO' in theil' officl'a·l r.a S ~lt~ agenCIes of the State Gov-
. . ~ paCl'leS.
b Inllol'ol'; HIll'h nn I'llIil1o,YJIH'llt (~Olltl'ltct would Jm aglliust pUhlic policy aud
June 13, 1949
AROHIBALD R. WATSON, Oonnty Olerk) New Yorr,
1 basis,
INI"OHMAL OPINIONH en' 'l'lIE A'l'TORNJ!]Y·GENERAL 61
PENAl, LAW, 8IW'1'WN ~14u; 'l'OWN LA.W, SI~O'I'lON IBO-OPERA'.vroN OF Bn,L1ARD
PAm,ultH ON HIlNllAy-AU'l'IIOlt!'l'Y U!' 'fOWN BOARD '1'0 ENACJ'r ORDINANCE
PERMI~"I'IN(l Ol'Jo:HNI'ION ON HIlNllAY. ..
A town bounl doPI'I not hnve authority to enact an ordinance permitting
tho oporntion of !)illittl'll pn rlors on Sunday.
Your letter of June 4· inquires whether the Town Board of the
'rown of 'I'nsten may adopt an ordinance permitting the operation
of billiard parlors OJl Snnday, You state that the 'I'own Board de-
sires to adopt HIWh an ordinance pursuant to its power to regulate
the conduct of billiard parlors under 8ection 1:30, Subdivision 12,
of the 'I'own Law.
Section 214fi uf the Penal Law makes it unlawful, with certain
exceptions not pert iuen] here, to engnge in public sports on Sunday.
In the CUHe or ](enllll v. Murti«, 11 Mise, 051, the Court considered
the operation or a hill iard purlor on Sunday as coming within the
statutory prohibition,
Scetion 1ao or the 'I'own Law uuthorizes [own boards to enact
ordinances relating to various uetivlties, However, before specify-
ing the purposes ro!' which a town board may enact ordinances, one
of those purposes being specified in sulxlivisicn I 2 relating to bil-
liard parknx, SI'('LioB laO provides as follows:
"The town boai-d after a puhlie hearing may enact, amend
and repeal ordinanees, rules and regulations not 1:nconsistent
with lWIII, for the following purposes in addition to snell other
\
pm'poses HI1 muy he contemplated b3' the proviaions of: this
chapter {)1' other laws." (Emphasis supplied.)
'l'ho emphasized phruee clearly pluees a limitation upon the power
o:f a town board to enact ordinances under Section 1.80. 'I'he pro-
posed ordinance to which yon refer appears to be inconsistent with
Section 214fi of the Penal Law. A('cordingI3', I do Hot believe the
'I'own Board has authority to enact the ordinance in question,
Inasmuch as the Attorney-Gcnerul is 1101' authorized to render
f:orIna 1 opinions to other than the heads of the departments and
agencies of the State Government, acting in their official capacities,
the foregoing' distnlHsioll must be deemed to be entirely informal
and unoffidal, given in til(' llesire to be 0[' assistance to YOll.
June 1.5, 1.!l4!J
\VrLJ.,uM p, 'Ktr,IJI'], 'J' own IlttOl'ne]/, Narrowsburg.
l'1':NAI, LAW, HI'W'l'ION IlltlHj GJolNI.;JtAl. Or'J'Y LA.W, BWl'l'lON B-l'tiIlf,l() O.rFWlmR--
(JOW1'ltAC'1'H WI'I'II P()J,l'l'lOAI, SUllDIVlllIONS-EMPWYMENT OF OFFICER IN
BEI'AltA'n: ()APAl:I'I'Y,
An ofli(',l\l' of a ('ity ilia y lIot be clllployetl b,Y thll citJ' itS a craftslllllll 01'
illognl.
I have yom' lettcr of ,hUHl {j inquiring' whether a eity may employ
a public oJ11cer of the ldty as a el'aftl111Ulll or laborer on a. pel' diem
 IN1"OltJIIAI, OPINIONK 01" 'l'JJ1il A'l"l'ORNEY-GENERAL 63
62 INI"ORl\IAL OPINIONS 01" 'l'HJ~ A~l'~I'ORNgy-ClIm}<;HAIJ
VIl,I,AGJ~ IJAW, SI,;c:'rlON SO(:lO), (33), (55), (59); PUllLIC IhAL'l'H IJAW SECTION
, , ~?ere are var~ous statut~s ~hich pJ;'ohibit public offiecl'H from be. 20(1).
A Vi1llt~() may (mad ordiuanees dosigncd to inaure the sanitary disposal of
:u g l~l~~~'cst:d .dll'e~tly or lllehrect~.y in coutrlle~;s with the politica]
8ubdlVISlO11S of which they are officers. 111 this connection Pen' 1 sowage.
J~aw ,~ 1868 and C~eneral qity ~mw § :3 may he applieable to tl~le This will acknowledge receipt of your letter of June 8th in which
situation about. 'yl:nch J:011 inquire, ,J n uny event, and aside 1'1'0111 you ask if a village board of: trustees may properly enact an
statutory P;:'Ol11bltlOllS, It has been held by the Court of Appeals ordillllllee requiring all property owners to construct septic tanks
that u;l~Ier t)le ~~Ol:l1nOn }aw a cOll.tnwt !)etweoll .Il mnnieipality and on properties within the village wherein buildings used or occupied
o~Ie,o.f ItSr ~ffiee!s ]S ag~llllst public policy and illegnl" (ill a;itc?' of by humans are located,
~lal ke v, '1 own of Eussia, 283 N, Y. 272, 274 l1940!), Imll enol ' A village board has broad power to enact ordinances designed
A; >,1 0,f .an mrorma
, b c'I ('11"
UlO' . f' .. of:'Jthe AttorlH'Y Geuer»I
1 opuuon , " to Ma rOH-• to safeguard the public health (Village Law, Section 89, Sub-
Frec1em·k \V. V. Schadt of ,Jd'l'crsollville New' York dated A J O,lt, divisions no, aa, 55, 50), while a village board of health (Public
~9 194" I' I di , ' , ,,.,, 1'1'1
;"" .,', wnie ~ iscusses the Clarke case, and this ueneral questi Health Law, Section 20, Subdivision 1) may take necessary and
111 further detail. b ' " R IOn,
proper measures for the same purposes (Public Health Law, SeCl-
. In the light ,of, t,his decision of the Court of Appeals 1'1' •
VIew th t
for
t b . " " , ''', ,IH my
a a con .raet etween a city officer and his dty pl'ovidin'",
tion 21) .
For example, Section 8D, Subdivision 5G of the Village Law
. 01 el11;ploY111en~ of th,e officer by the city as It el'UftHlllaIi. or lab ' ';' empowers the village trustees to "* "" * compel the owner or
IS against public policy and illegal. 0101, occupant upon which is situated any objectionable stable, privy,
f: Inu~ll1u~h, as the Attorney-General is not authorized to rondee sewer, drain, eistern, vault 01' any unwholesome or nauseous con-
~~:l11a. opmions to, other than the h~ads, of: the departments and dition to eleallHc, remove or abate the same; '"' '"' "."
tlbcI~les ?~ tl~e ]~tate 00vernment, acting in their offlciul eapaeities While there is doubt in my mind that a vil1age board of trustees
l,e oreffigo~nblo e ISCUSSIOn must be deemed to be eutirelv in 1'('J!'j'11 lll' may prescribe a partieula» method for private sewage disposal
an d uno C I a , ' " which would apply to all existing' buildings, I do believe that there
June 15, 1949 is sufficient statutory authority to enact ordinances which will
M:WUAEL A, GURDA, Corporation Counsel, Middletuwn. insure the sanitary disposal 0:1: sewage. '
I am informed by the State Health Department that Mr. M, 'I'.
Hill, District Sanitary Engineer, is located at Middletown. I am
sure that he would be pleased to be of assistance to you should
VILLAGE LAW, SNCJ'fIONS 90, 95,
your village desire to conllnnnicate 'with him with respect to the
A village ordinance must be post 1 1 Ir 1 '
trustees. A summary is inSI;ilicio;It~C an: pu I IS \('<1 lIS It WlIS I'lIu!\tI1(1 hy the practical problems involved.
The Attorney-General is authorized by law to render legal advice
YO~'h~~l;~~l :l~~mtowledgo r~eeipt of 'yoU!' letter of June 8th wherein to officcrs and depul'tmentH of the State government only. Neces-
sarily, therefore, the foregoing is rendered informally and ~1l10ffi.
Building Code on~~~C~'lo~:'d~~u~~.vllwg~1 may. adopt "the National
"posting' or publication ;f
'Ill of tIre rnc ,?r.wrlter~" by title without
While the notice of' he, c ir " ie prOVISIOns o:~ the ordinanee".
cially with a desire to be helpful to you. It is not to be considered
a formal opinion 01: the .Attorney-General.
sufficient if· it des 'b' e.arll1g on a proposed vII,lage ordinance iR
, .. ' , .1 ,cn es 1ll general tel'
(Villag'e Law, Section 90) the te
95 of the Village Law me'l,'
".
tIl
br. ..,'
'llClproposee .ordlllltllee
I'm P,u IS lee , as.used III Section
June 16, 1049
JOHN W. SWI·jJJlNY', Newburgh.
nanee ill full, and not a d~: ~, ~~rbat.l1}~ ~'eprodue~,lOn of tl~e ordi-
tur~s (1944 Atty.-Gen, (Ini.)I~P ,~~~teAelene~ to ItH e;sr'wutllll fea- GlmlmAl, :M',l]NlCll'AT, LAW, Sw~~rroN 02.
1l0tlC.e as posted 11111St be the ,,,' '~ ,tt A lcn. (Inf.) ~4). 'rhe
y
Couuty l1i~lnvlty em]}loyel\H pmpIoj'od on n pCI' diem or hourly 1.J~sis
publIshed and as was onteree1 h;ll~IC, III .Lonte~lt,l1s the.ordlllllllrC liS llllt)' be 11l1owud paid holiil!IYS so long us it. is Cl'odited to t~lC allll~nl vacn~IOll
(1945 Atty,-Gen. (In1'.) 37). , h e mlllutes oJ the vJllag'(1 tl'IlHl:OOR 100tVll for HItCh mlll'loyccs 11\ ltel\Ol'tl!tllce WIth thc torms of the CIted sectIOll.
The Attol'11ey-General is authorized b I' ~l'hiH will aclmowleclge receipt of your letter of June 9th wherein
to ?fficers and departments of. the'St '[ ~w t~ render lC'g'al adviee you ask if county highway, employees employed on a per diem or
sarlly, therefore,the fore oin',. , a e go,:ell1ment ouly. Ne(~es· hourly basiH may hI} compensated 1'01' le~nl 110lidays not worked.
ciaUy with a desire to be ~el,
S
f1
t rendered ~llfol'mally and ulloffl- Section D2 of the General Municipal IJUW empowers the govern-
a f01'111al opinion of the Attol'~e~~_Go you It IS not to he eOllsidr.l'f1d ing hoal'<l oj' a municipal corpol'ation to grant such emp.loyees
.1 cnera.l'
June 16, 1949 vltCatiollSEol' an aggregate perioel not to exceed three weeks III ~ny
year. '!'hel'e is no requirement that the number of days vacatlOn
JULES B .ST . GERMAIN, 0 01'p01'G~'Wn
1 ",'
Cottnsel, Island Park,
 64 INFORMAL OPINIONS OF ~'HE A.~'~'ORNEy·GENERAL
run consecutively. A.s long as the total amount of annual vacation
d?es not exceed three weeks it seems to me that the hoard of super.
ylsors may by resolution, determine to include any legal holi~lay
III the aggregate annual vacation.
'I'he Attorney-General is authorized by law to render legal advice
~o ?fficers and departments .of t?e State government only. Neces-
s~rIly, t!lere:fore,. the foregoing IS rendered informally and unoffi.
cially with a. ~esIre to be helpful to you. It is not to be considered
a formal opmion of the Attorney-General.
June 16, 1949
JOI-IN N. McLAREN, County Attorney, Hudson.
LAWS, 1916, 0.rrA~TER 222 (SECTION 317, FORMER. TOWN LAW.)
J A fire distriet f?rm~d under, th~ cited chapter may install It lire hy(1rnnt
No such power exists 1ll fire diatrlcta formed under tho prusnut 'I'own Law:
Tl;is will acknowledge receipt of your letter of May l('th Y
~k If there is a "dl:ty .an,~ obl~gation on the part i>f' (;"o~vn ~l;
estal No.1) fire district to install a water line and hydrant
~lfP?n. the p~'ope1'ty of a ,school district within the fire distr{et anc1
1 It IS a proper expenditure of fire district funds.
I doubt that ,there ~s any such duty or obligation but I do believe
that an expenditure, If made by your particular district "'011Ie:1 1)
proper. ' . ""
I n.ot~,that you state that the fire district in question is a town
~re dIst;lCt formed p.ursnant to the provisions of Chapel' 22G of! th~
aws o. 1916. Section 317 of the Hold" 'I'own Law (Section 3:
~~aPteI 2~6! Laws of 1916) defined the powers and duties of town
re c0I?-mlssIOners of such a town :fire district
SectIOn 186.' S u bd'IyISI?n
.. 1 of the Town Law preserves the
, 0 , '
existence of such a district and Subdivision 4 thereof provides:
i'.~ itNothing h.erein contained shall affect OJ' impair the
v~l~ It:r or re~tI'l.c~ the exercise of any power or limit the
o iga IOn
no 't'
or filiability
di conferred
. or imposed
. by law\Y upon any
w exis ing re Ist1'1Ct Or the officers thereof * * *"
. In addition to the powers conferred t .a , •
stoners by Section 317 of the" ld;' T ~on ,?wn nre COln~llS-
VS. Huntington Water W01'7cs (~924) ~~81A aW'ri.eo·8eC')X j'el Aj·t!~Ul:
such town fire eommisr i a-n h , , : Q p . IV. 7, holds that
u on fire COl ',' ~ O~ClS av~ tl:e additional powers conferred
P~ovisions o;~~SI~~~::l~nS~~~i~~~S~l~ct~Ol~anized pursuant to the
Section 37 of thatf 1 , 0 t.e .COUllty Law. Under
to "procure SUPPlieso~fn:-at:;;'~uch comr~ll~slOller~ had the power
the power to install a wat " 1'n my °dPll11On, this would include
town fire com " . ,e~ me a1:
a hydrant, While yOUI'
hydrant I d::~~01~~~~ ll1a~1ll1staP. tlns particular water line and
them t 'd Th eve . l~re IS any duty or obligation upon
0
sioners an~ ~~. the ~~:~ter I; 111 tlle ohso1e dis,cretion o~ the eommis-
ca rici 'b·. ce 0 proo t at then' detcrmll1atioll is not
p ous, .aI. Itraly, unreasonable 01' tyrannical, I doubt that they
65
can be eompelled to expend fire district funds for such a purpose,
If they do !'lO dotermiue, J believe it is a proper expenditure of fire
district frmde.
It is to be noted that these views apply only to fire districts
created under Se(~tion :317 of the "old" 'I'own Law, and under
former Seetion a8 of: the County Law. There is no comparable
provisioll in the present 'I'own Law authorizing a :fire district
orcranizecl under that law to install a hydrant. It may only con-
tr~ct for a HlIpply of water (Tuwn Law, Section 17G, Subdivision
12),
'I'he Attorncy-General is anthorized by law to render legal advice
to offieers and Jepartmcmts of the State government only. Neces-
sarily, therefore, the foregoing iR rendered informally and unoffl-
eially with a desire to be helpful to you, It is not to be considered
a :I'ormal opinion oJ' the Attorney-General.
June 20, 19<19
.JOHN D. SIIn'l'H, Endicott,
CoUN'l'Y IJAW, SIw'rION 17·1-(:1); Gr,OVlmSVll,LE Ca'y CHAM'ER. (CHAPTER. 275,
LAWS 1800, AS AMl~NIJJo:l».
In view o:r. the stututory diructlon in section 84 of tho clted city charter
providing' that thtl ci ty t\h!llllhorl,ttin ~hlll1. pay. a fo? of fifty cent~ to the
1"\11 ton Oouuty Clerk j'ot' his serviees in filing, indexing and recording eer-
e tiflentl\H of. Httle oj' .lunds sold by or to tho city :fOl' unpaid taxes, the county
clerk in qnestiou should not eollect the :foe preseribed in the County Law
itS the minimum j~O(\ fol' tho services of It county clerk £01' recording a deed.
'I'his will acknowledge receipt of your letter or June 6th in
relation to the :f:ee which the Fulton County Clerk should collect
from the Chamherluin of: the City of Gloversville for filing and
recording certifleates 0:1' sale of lands sold by 01' to the City for
unpaid taxes.
A.s is suggested in your letter, Section 84, Subdivision 2 of the
Gloversville City Charter (Chapter 275, Laws 1899, as amended)
prescribes that "The county elerlc shall be entitled to receive a fee
01: fifty cents for each eertiflcate so filed and recorded * *, >}«." Th~t
Subdivision requires the county clerk to record such certrficates 111
o"the book to be kept in the said clerk's office ror that purpose 'I« **"
and to index the same "* * * in the same book and manner as
deeds are required by law to be indexed >}« >}« *." .
While Section 17<1, Subdivision 3 of the County Law does pro-
vide that the minimum fee of the county clerk for recordmg a
deed shall he one dollar I do not believe that the certificates in
question are deeds. It s~ems to me that the statutory direction as
to the fee which the Chamberlain should pay should be followed,
The A.ttorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sadly, therefore, the foregoing is rendered ~nformally and ynoffi.
cially with a desire to be helpful to you. It 18 not to be consldereo
a formal opinion of the Attol'lley·General.
June 23, 1949
HERBEH'l' M. FINOH, Co~~n-ty OZerle, Johnstown.
 66 J:\ I'DILI! AI. OPINIONS (n,' 'l'lm A'l"rOl~N];y-G]:NERATJ 67
INFORMAL OPINIONS OF THE ATTORNEX-GENERAL

'l'oWN LAW, SEC'l'ION 176(1l·a). 01, Y011l, ('ll'II'tl'l'

, . which post 01' snell a construction to he
• permits the
Nominations for the office of chief engineer of It lire district must be ide HI' 'I 1l'(~ltnl'Hl (·I!.V ellltl'g'e. , P ·b1'
confirmed by the board of fire eommissioners of the district. nUn(;W~~V;'l'~ I ('all t(; you r attcnti()n~ .8eetion (!D oJ the. u. I~
dnu IJ'lW which deals with municipal scrvieee to ~ housing
This will acknowledge receipt 0:£ your letter of June 15th in n~n~~etg [ 1lolicvc the ('ost 01' the pl'()pOHe~ str~e.t axtension I~lgl:t
relation to the qualifications of the chief of a fire department of a
fire district.
f~~01t( P~'olHH' <'ito" (·hHl'gO under that section, if your council HO
In fire districts organized under the present Town Law the (le\~~;~:li~~~~i aplll'(wiale, 1 HIll sure, that I pan ,<10 no lllore. ~han tl
nomination and confirmation of fire department officers is set out in 'It out to von what seoms to he tho applwahle provisions 0 f
8ection176, Subdivision ll-a of that law which provides as follows: ~)I()I.1 .'t'.'lt'llt.('<'
t 10 H, . ,,~,
·N' othirur eoutuinwl herein is .to .he construed as a rec.~
. ,., ,. 1 [' " 1'01' the cost OL
"ll-a. The members of the fire department of the fire dis- ommelldation that a llHl'tH\;t1Ul' ~(\ l(m~c ~. T pa~tl1g i: .tion df the
trict shall meet at a time and place designated by the board of the extension he ado]lt,nd, '1hat IS ontIre;) III ie niscre

l()(;~}l~~~,~!<\~~'leY_(Icneral is authorized by law to rCl1d~r ll'igal NIvic,~

fire commissioners on the 'I'hursday following the first Tuesday
in April of each year and nominate persons for the offices of
chief engineer and such assistant engineers as may be provided to officers alH!' departments or the Stute gov,er~lmel1t on s I~~~fi
for in rules and regulations adopted by the board of fire com. ':1"] 'tl~(1r(1fol'c, the foregoing is rendered ~n1:ormally and ~\ ' i
missioners. Each nominee shall be a member of the fire depart- ~fll il~' with a (1esil'e to he helpful to you, It IS not to be COnSl( erec
ment and an elector of the fire district. All nominations shall a l'o~.'nU11 opinion or tho Attorney-Gellcml.
be made by ballot. The board of fire commissioners at its
meeting next succeeding the making of such nominations shall July 5, 1D4D
consider the same and appoint such persons to the offices to (lgOItcm 1\LDoNOIIUJ~) 001'}Jo/'ntion Counsel, Niagara Falls,
which they are respectively nominated or, if a nomination is
not approved the board shall call another meeting of the mem-
bers of the fire department at which a new nomination shall
be made to take the place of any nomination not approved, '.I'OWN ~~~~~;I ~~~II;;1~~~n~~.11():;'~;)(n'I,r be expended til ('.:11'0 fo1' all nbandoned pulilie
which procedure shall continue until a full set of officers is 1'(~llll't<·l',Y, .
approved." . t 0 [' yO,U1
. , letter of eTune 231'd III
'Phis will acknowledge receipt .', "; . i·. i neel
The Attorney-General is authorized by law to render legal advice relation to the duties of !1 town board with respect to em a ianc 0
to officers and departments of the State government only, Neces-
sarily, therefore, the foregoing is rendered informally. and unoffi- bl1'i~;of~'o~I~~t~ ~~)iiTo(Y~~<~~lih~' this particular cemetery as a public
cially with a desire to be helpful to you. It is not to be considered cemetery. ,.,. 1 .r. \·1 . '1' wn I aw provides in part,
a formal opinion of the Attorney-General. Heetion 2Dl, SubdIVlSIOll ., 01 .ne 0.. .J, ., '1- for the
June 24, 1949 /loll> >II< and the town boardeof any town must e~Jso PtrlOeVt~(tell~l1 pri-
011>

. .I 1 from all cemeterIes, 0,1·

removal 01: grass ,HllC . ~eec H, ... . ... . d or not controlled by any
FRED TRAXEL, Mastic Beach. vate )lllrial grolllHlll which al? l~.bUlldone.: of which there exists no
existing hoard or body and~Ol*tl\~ Cfl,~ cost not to exceed three
special fund 01' l'IH!OWmeni(:A. . . ~l'l by' Chapter 567 Laws of
POJlLW HOUSING LAW, SECJTION 99, hundred <lollnl'H annually .. s amenc eu r . ,
A city may render municipal services to a housing projce] ill aeeordanee
with the cited section, ' IH4!l). . . ' .' 1 nes within the terms O[ the
If the cemetery you lUl\:e ll1 llrlnce COl tl~at town l'~m<1s may prop-
This will acknowledge receipt of your letter of June 22n<1 in statute above quoted then It wou c s em .
which you ask if the cost of the construction of a continuation or erly he expended :tor SU(\~l, a Inllrp'~~llei 1 y law to render legal advice
a street in your city should be paid as a general city charge or as 'I'he
,.' At·tOl'l1ey-Oener.all.s
,' . antl' IOllZOC
tl 8\ te1, . . ... t . Jy Neces-
governmcn on" "
an assessment upon the property deemed to be benefited thereby, to offiecl's and c1cpartJ~1ents,o. , ,.le : '\ered informally and unoffi-
I have examined Section 127 of your City Charter (Chapter sao,
S
sanily, t]Wl'cl'orc,. the Jorelf.l:°llllf t 1011C
dally with a desire to be 10 p.1.1 0(... 0 11',,]
17
It is ~l~t to l)e considered
Laws of 1916) as amended by Local Law No.2 of the year IH3G " 1 OpUUOl1
•. .r. the Attornev-
(Local Laws, 1936, Page 202). As I understand your letter it is a formal 01. " , ' leneret ,
desirec~ to extend an e::cistillg street to connect with an existing' .Tnly 5, 1!l4!l
street m a federal housing project. I doubt that this is a eonnec-
tion with a "federal highway" as that term is used in this Section RAYMOND C, TVI,ER, Worcester,
 68 IN1!'ORlIfAL OPINIONS OJP 'l'H:m A'l''l'OH,NEY -GJ):NEHAIJ
VILLAGE ]~AW, SIGC'fIONR 42, 187; PUBLIC Ol<'~'WImS LAW, SI';C'l'ION a.
A village police justice must be a resident of tho village but the board of
trustees thereof may designate certain persons not residing in the village to
serve as acting police juatiee,
This will acknowledge 'receipt of your letter of June 28th in
which you ask if a village police justice and an acting village police
justice must both be residents of the village to properly hold such
offices.
Section 42 of the Village Law, which deals with the eligihilitv to
office of village officers enumerates certain offioerH (not Ine1ucliuo'
either of the offices in question) who must be the owners of rooord
of r~al property within the village. It then provides that, "Any
qualified person is eligible to any other village office". Included iil
~his category is a village police justice. The quoted language means
III my opinion, that a police justice must possess the (rl1alilication~
for civil office set out in Section 3 of the Public Officers Law,
Among other things this means being a resident of the village
(cf. 1946 Atty.-Gen. (Inf.) 26, Opinion Atty.-Gen. (Inf'.) to II. ,J.
Wellebil, 3/28/49).
Section 187 of the Village Law provides that a village board of
~ruste~s shal~ designate a person to serve as acting police justiee,
III a VIllage III which the office of police justice is established, to
perform t~e d~ltie~ of tha~, office "During' the absence or inability
of, t~epohce J;;~tlce ~ *. >II< '. Tho, language of that section which
provIdes. that, *
* a justice of the peace, police justice 01' at-
~orney;-at-law ~uly licensed to practice 1'esiding im: the same c01/,nty
~n "fh~ch the v~llage or a part thereof is situated >II< * >11<" shall he so
designated suggests to me that the acting police justice need not be
a resident of the village (ef. 1946 Atty.-Gen. (Inf.) 26).
The Attorney-General is authorized by Jaw to rendor legal advice
to ?fficers and departments.of the State government only. Neces-
sarily, th~re£ore, the, foregoing must be considered as having been
rendered. informally and :unofficia11y with a desire to he helpful to
you. It IS not to be considered a formal opinion of the Attorney.
General. ' ..
July 6, 1949
JOHN LEWIS, Suffern.
Vn,MGE LAW, SE,CTIONR 93, 338; OODE 01' PMClGIlUlm, Sl~C'l'roN 15.t
CRIMINAl.
Vil~herer a . VIllage board of tr,L1steos has [il'ovWo<1 thnt
(I. persou Violating' II
t go~, dm~ll1ce may be punished liS U disor<1el'!y person II membo}' of n
v?,~nt.P° le£e orca ~nay arrest a person in a v.illage withiJ: tho town fOr It
10 a lOll a an Ordlll11l1Ce of that village. .
Tl~is will acknowledge receipt of your letter of June 30 You
ask
'11 If a member of a t own po li1C f.orce may arrest' . in 11
' hi 7 a person
~i11:::. WIt 111 the town for a VIOlation of an ordinance of that
A town policeman is a 'Peace Ilfficer (Oode of Oriminal Procedure,
INI"O!tl\fAI, OPINIONS OJ!' 'l'Im A'r'I'OUNEY-GENEUAL 69
See. 154). Section Ha or the Village Law deals with the violation
of village ordinances and provides in part : ,
*
"* *. In addition to the penalty the board may also ordain
that a violation thereof shall constitute disorderly conduct,
and that the person violating the same shall be a disorderly
])el'sol1 ' and sueh violation shall constitute disorderly conduct,
and, .sueh ]. ] Iy person, * * *"
, person s"1mi.I Iie a rnsorcer .
Seetion :Ja8 01' that Chapter provides:
A (IisOl'derly person under this chapt~r is su~ject to arrest,
with 01' without process. A member of the police department
01' a pClH'C offieer may arrest a disorderly person :"'ltho'?-t
process l'oJ' a violation of a village ordinance, eOIIl1?ltted, 1U
his prexeuce. An officer making an arrest under this sect~on
shall immediately take the person arrested be:[or.e. th~ l?olJ;ce
[ustice of the viJh~ge or a justice ,0f the peace having jurisdie-
tiou, if sneh ll1aglstrat~ can be f:o:llncl, If not, he may detain
the person arrested 11111:11 such magistrate be found, not exceed-
ing'twenty-four hours, * * *."
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only: Neces-
sarily, therefore, the foregoing' must be considered as having been
rendered inl'ormally and unofficially because of the Att?rney-
General's desire to be helpful to you, It is not to be considered
'a formal opinion of the AttorncY-General.
.July G, Hl4D
M, 'AIVIIllWf:lr.: McCAlm, Haverstraw.
'l'OWN LAW, RNO'I'ION 202-c, . .
A town honrd 1lI11'y not diminish the urea of 11 water dlstl'lCt.
'ellis will acknowledge l'ec;eipt of YO:lr letter of; J~lly 5t~ in
which yon ask if the unservieed area 01: a water district rna) be
eliminu:ted fl'om the district, .. .' . . . , -r:
Section 202-c 0:1' the 'I'OWl~ [J!~W ,w!uch deals WIth :h,e )?owers..~
a town hoard to dissolve and diminish .t1~e area of .c~rtal1l spe.cl~.l
improvement dlstrlcts contains ~1O. prOVISIOl1 al1thorlzmg tho dimi-
nution of the area of a water c11stl'll't. . ., h
I am SllI.'C that you arc familial' with the lmutatl?ll l1PO~l t e
authority or the A1tOl'lle~-Cloneral to render legal a(lv~~ep{o °i~~~:~
and dej)artments of the State goyeJ.'l1t1lent only. Nece~s~. ]~, . .
Iore, the fOl'egoing' is rendered nrlormally and Ul~.off1:-IanJ tth ~
desire to be helpful to vou. It IS not to he consider ed a . orma
opinion of the AttOl'IlPy-OCnel'flI,
-Iuly 8, 194H
GORDON lVr. BUOWN, Buffalo.
 70 INFORMAL OPINIONS Ob' '!'lIE A'l"rOlmI~y-GlmlmAIJ
GENERAl, MUNICIPA.L LAW, SEC'l'ION 209(1).
An ordinance should be adopted permitting outside servlec hJr a local Ilre
departmen t,
'I'his will acknowledge receipt of: your letter of -Iuly 7th onclol4irlO'
an inquiry from R N. Rozell in relation to outside service by ~
local fire department. , '
. Although this is a somewhat confused subject which I am told
IS frequently misunderstood, it does seem to me that all ordi,
nance shol~ld be.adop.tecl.to authorize and perI~lit a city fire depart.
merit t.o aid a fire district, although the ordinane« may properly
authorize the he~~ of the fire department to extend sueh aid, suI).
jeet to such conditions and restrletions as may be prescr-ibed therein
(General Municipal Law, Section 20D, Subdivision 1).
Of course, I know nothing about the particular situation which
YOl~r correspondent dcscribes so that no statement of mine should
he interpreted as a comment on what iH entirely a local matter.
. I. an~ sure that you will impress upon your correspoudent the
ImlltatlOlI; upon the authority of the Attorney-General to render
legal advice to. officers and departments of the State government
only. Nec~ssanly, the foregoing must be considered IlH havinc been
rendered I!lf:ormal,Jy and unofficially. It is not to he cOI1Hid~red a
formal opmion O[ the Attorney-General.
July 14, 1949
THOMAS W. RYAN, Director of Safely, Albany,
VILLAGE L.AW, SEC'l'IONS 89(48), 91(1).
£. A v,lllage may ~'egulat(l l~alvkillg and lJo<1rlling but .an unduly high Ilcense
ti~~l~nay not be exacted noi lIlay the OI'<1ll1ltllCe he <10s1g11ed to stlfle eompotl-
, '~'1~is willack~lowled.ge re~eipt. 0 I' your letter of .Jnly uu, in
lelatlO~l to the ,mth~rIty 01 a VIllage hoard of trustees to enact
alI'l~r.dlIlance l'e,gulat~ng hawking and peddling within the village.
J:IS reply WIll, of course, also be an answer to your identical
letter, to the Oomptl'oJ]el' dated the same day posing the same
question, • .,b ' I'I'HA(,:A OI'J'Y CnAlt'l'gll. ((JIIAP'l'J'.lt 1303, LAWS, Ifl08).
S~CtiO~l 8~, ~:f the Villa~'e.I:aw deals with the POWCl'fl of a village
hoalC~ o.L t:l:~tecs, .SubdIV1SI0l1 /18 thereofprovidefl in part th;lt
the1dtll.iustees .1l~a.y !I('ew!.e, regulate 1I11.d. l'cStriCt hawldng' vendinn'
per
.
m o
' sohCltUJO'
, ,"', • ... b
o]"(]eI'"
.,
'1 tl'Ie (jl''yllIg'
. ~ .<lnt.
" 0:[' gOOf] '
s, warCI4, h'
mel'-
b
ch~Hl~c1!se , o} other ('olllmo(htIes III the Htrcets and public plael~s and
.Y gOI~lg 1.1'0111 house to house; ~{< * *"
SectIOn 91 of the ViUag'e Law ])l'ovides in part:
"§ 9'1.. L'ICenSlllU'
. providing there is no constitutiOl~al or, sta:tnt~~,Y prolllb1tlOn or lll-
OccujJatiolls
'1'1 1 '.' ,
, ,Ie. Joard of, trustees o·~ a v~llage may, hy ordinance J]'O.
]~lblt ~he. lJUl'SUlt or exeI'eI~e WIthout a license o/' any (;/,1 t he
I'ollowmg trades or occupatIOlIs within the village, to 'wit:
~, ,* *, * l:a~~ldngaIJd peddling' except the peddling of:
meats, fish, [Hut and farm produee hy farmers and persons
TNI"OIt.11Ar, Ol'lNlONR C)Io' '1'1[[0] .A~l'~PO]mli;y-GlDNlmAIJ 71
who 11I'ochH'e such «ommoditios, provided, however, that no
sur..h OI,(Ul1l\lWe shall prohibit hawking or peddling by an honor-
ably lliH('hm'ge(l soldier, sa ilor or marine who is crippled as
a I:('HlIlt or injurie« reeeived while in the naval or military
Sl'l'vice 0 r tho United Ntlltes Or the holder of a license
urunted purxuuut to s(wtioll thirty-two of the general business
law, '"' * *', ,
In this couue«t ion it is to ue noted that II veteran licensee under
the provlsiou» or Neetioll ;l~ oj: the (Icneral Busi~I~SS Law ,,:h? is
not a (.l'ipp,le, muv Hot ~)(: l'e(Fll1'~\d to pay an a(~dItlOnal municipal
license ['('(1 in CHwlt nuuriuipulitv 11l which he desires to do bllS111eSS,
Imtlw is rl'«niJ'(,llto l'ompl,\' with all rO!lsonable ordinances and
regulations whieh are upplieuhle to all peddlers alike. (1933 Atty.-
Gen. (lu1'.) ;N4, (01', 1!l·17 Att~·.·(len, (In'/'.) ~)(i).
On the l4ub,jed or Ill(' anunmt of license fees which may be charged
it nmst he borne in mind that the 1ll11']HlSC or these ordinances can-
not he to intel'feI'!) with luwl'ul private business; pass a revenue
act 1'01' the villaa« 01' stifle competition and increase the business
of dealers with ~I01'!)H located in the village (Raiclel v. Village of
'l'np}JCiI'Ii/lke (l!):3H) 2!l·1 .App. Div, 22) . An unduly high license
fee may not he charged. , '. , ,
'I'he ordiuunce must not he urbitrary, t!Iserllllll1atory, unreason-
able or unduly opp ressive or all inf'ringeiuent upon the First and
Fuurteenth A;I\('lHlmellts to the United States Constitution (People
V, anl/e (lD4,2) 17!l Mise. G:lR) , . . .
'I'he AttOl'llO,\'-( I cnerul is authcrlzed Ily law to render legal advice
to oftlcera and dl'pal'tments or the Ntate government only, Nece~­
sarilv, thel'ol'ol'e, tho foregoing' is rendered ~u:r:ormanJ' and ~1ll0f{1­
dally with It desire to he helpful to you, It 1S not to be considered
a formal opin ion oJ' the AttOl'llOy·Cieneral.
July 14, 1!l4D
.JOHN A. li'Jo;ltRAHA, Vill(lfjc 11Uo/"ney, Cattaragus.
'I'he sume l'lJl'HOll muy occupy tho omoos of city WIlI,a supervisor and
momhor oj~ llw hourd 0:1: puhli« 1\'01'ks of tho city at the Ramo time,
'l'hil4 win a(.lml)\v]cldge receipt of your lett~r of July 11th .in
whkh you ask ill a meulher of the bOUl'd ~f puhlI~ works of the OIty
of Ithaca may at the Hame thne.' be non~mated for and occupy the
o(fiee of: supervisor :from a ward In that CIty:. . .
A person may hold more than one publw office at t~le, ~ame tn;ne
compatibility preventing theholdlllg of stud offices by the same per-
son (lDibB Atty,·Gen, (Tnl:.) 50), ., ,
Publie oi'fiees are incompatIble when thcu functlOns are lllCO~l­
sistent !lnd their pel'fol'mal1ee by one and the saI:r:e person l'e~ult In
antagonism and a (lo)}fli~~t of: cl~nty, so t]1!~t cOllcCl,:ably the Hl.cum-
bent of Ol1e cannot fmthtl.l11y (hscharge WIth propl'lety the dutIes of
both (Peo. ex rel, Ryan v. Green (1874),58 N. Y. 295),

INFORMAIJ OPINIONS OF Tum A'l"l'onNBY-OBNliJI~ArJ
72
I find no constitutional 01' statutory prohibition in the 11l'(1Scnt
instance.
A supervisor elected from a rity ward is not II eity of!i('rl' (Twin
Oity ~el'vice Station v. Oity of North I'tnuiwamd«, N. Y. (1!l:l7)
162 MISC. 271).
I find nothing in the Charter of the City of Ithaca (ClIHIl{;Ol' flO:l
TJMVS of 1908, as amended) which aHsigns to 1\ ward supervisor th(:
performance of any ac1~ninistrative 01' other J'unetions related to the
,Cl~y government. Section 17 of the Charter provides for member-
SI~IP of ~llch a ~llpel'vis.or on the ,'rompkins County Board of' SUV<Jl'-
VIsors with duties relating to that body only.
Memb~rs of the board of public works of the city (Section 107
et seq. City Charter) are assigned certain duties with respect to the
contr~l and lllanageme~lt of certain. edty departments (e.g, water,
sewers, streets~ etc.). .'1 hey are alJpoll1ted by the mayor, receive no
salary and then' functions are entirely administrative.
. Although tll~ acceptllJ;lee bJT a member of: the board of' the office
of maJT?r or CIty eouncihnan creates an automati« vacanev in the
office of member of: the b?a~'c1 (Sect.ion. 114, City Charter) there
seems to be .n? other re~tI'lCtr?n on holding other public office.
In ~y opnnon there IS no incompatibility between the offices of'
sU~)erVIS?r fro~n a ward in ~he City of: Ith~lca and member oj( th~
boar~ of public works. It follows that a member thereof may he
llomm at ed to the first named office and .if: elected properly oeCU!JY
b oth of them. i . .,,, "
The AttoI'lley~GeneI'al is authorized by law to render legal advice
to ?ffieers and, depaI't~nents.of the State gov.el'llment only. Neces-
s,arlly,. therefore, the foregoing ~nust b~ considered as having been
I en deI ed. informally and ~1ll0ffiClal1:y WIth a desire to he helpful to
JTau. It IS not to be considered a formal opinion of the Attornev-
General. ow ,J
July 14, 1949
RAY VAN ORMAN, Eteciior: Commiesione«, Ithaca.
'l'OWN LAW, SEC'l'JON 130(6), 133,135.
. A.town bon.l·d.mI1Y enact an o!'clillalwO rogulating and prohibiting dump-
mg III the town III uecordunes WIth the provlsions of tho cited seetlona,
TIl;is will acknowledge receipt of: your letter of Julv 12th ill
relatl?n 1'..0 the power of a town board to regulate and prohibit
dumping 111 the town. ' to restrain by injunction the violation of any such ordinance,
S~ction 130 of: r,he Town ,IJaw deals with the power of a town
board to enact ordinances and provides in llart:
"§ 130. Town ordinances
'I'he town bo~rd after a public hearing may enact amend
al~4 repeal ordinances, rules and regulations not inc~nsistent
WIt!) law, for the following purposes in addition to such other
purposes as may be contemplated by the provisions of this
,
IN~'OIUIArJ Ol'tNIONR 01" 'l'TIN A'l''l'OItNNy-GENERAL 73
chupter or other laws. 'rho town clerk shall give notice of
such hearing by the publication of a notice in at least one
newspaper cireulatiug in the town, specifying the time when
and the place where such hearing will be held, and in general
terms dt'sl!l'ibing the pmpoeed ordinance, Such notice shall be
puhlished once at least ten duys prior to the clay specified for
such hearing,
O. Public (lump and dumping gl·ound. Prohibiting and /or
)'('g'ulatinp: the lise of all~r lands within the town as a dump 01'
<lumping grouud. «< »> »> "
'rho ordinance may he effeetive only in that portion of the town
outside. iucorpouated villages or eities Crown Law, Section 131).
Section laa provides as follows:
"§ laa. 'When ordinance shall take effect
•
Every ordinance hereafter adopted 01' approved by the town
hoard of a town to which the provisions of this article are ap-
plieable, shall be entered in its minutes and published in the
official paper of the town once and a. printed copy thereof
posted conspicuously in at least three public places in the
town for at least ten days before the same shall take effect,
and an affidavit of the publication and posting thereof shall
be filed with the town clerk. Hut such ordinance shall take
effect from the date of its service as against a person served
peraonally with a copy thereof, certified by the town clerk
under the corporate seal of: the town; and showing the date of
its passage and entry in the minutes."
Section]:35 provides as follows:
"§ 1:35. Violation of ordinances
A violation of allY ordinance, 1'\11e or regulation adopted by
the town board pursuant to this chapter is hereby declared to
he a misdemeanor except as otherwise provided by law, and the'
town board may provide for the punishment thereof by :fine
or imprisonment or both. It is also empowered to provide civil
penalties for such violation, The town .board may also main-
tain an action or proceeding in the name of the town in a
court of competent jttrisdietdon to compel compliance with 01'
rule 01' regulation, notwithstanding that the ordinance, rule 0['
regulation may provide a penalty or other punishment for such
violation."
In towns tho board of health consists of the town board (Public
Health Law, Section 20, Subdivision 1). Section 21 of the Public
Health Law deals with the .powers and duties of such a local board
of health. That section provides in part:
 INJo'OHMAIJ OPINIONS OJo' 'l'l1E A'l"I'ORNl!W-GENERAL 75
74 INFORMAL OPINIONS Ol~ 'rIlE A'l"l'ORNIiJ¥ -0 gN
I
JomATJ

'lihe Attorney-Generul is authorized by law to render legal advi~e

. " * * *. Every such local board shall make and publish Irom to officers and departments of the State government only. Neces-
tI~ne to time all such orders and regulations, not ineonsiston]
sarily, therefore, the foregoing must be considered as having been
with the provisions of the sanitary coele, as it may deem !H'C<'H- rendered inf?rmally and ~1ll0fficiany be~anse of the Attorney-
sary a~lel proper for the preservation of: life and health and the General's desire to be helpful to you. It IS not to be considered a
execution and e~lforcement.of ~his chapter ill the municipality, formal opinion of: the Attorney-General,
It ~hall make without publication thereof, such order and regu.
lations for th~ s,uPl~ression of llu,isaIWeR and eonecming all July 18, lD,j.!J
?ther ll~atters ,m ~t~ judgment detrimental to the public health
111 specialor individual eases, not of gClH'ral applieut.ion, IIIHI EN'oy C. Br,:nm, Yillaae Clerl«, Sag Harbor,
serve, copies thereof upon the owner or oecupant .of anv
p:'emlses wl:ereon sucl~ nuisances or other matter« may l>xiAi,
VILI,AON LAW, SI';U'I'ION 2(10·1).
01 up.on which may exist the cause of other nuisance» to other
A villl\l{O mny not fUl'uish SPWOl' servico to II private corporatiou outside
premises,
011. «. * * "
or cause the same to be eouspicuously
" .', posted
. ., 'c' . , there 'o ,- tho boundnrles of th is StrLte. '
'Phis will acknowledge receipt of: yonr letter of J nly 25th in
,1t follows that th.e town board aeting as the local board of healt.h which you ask it: a village may l'nmish sewer service outside the
~d~ suppress a musance such as a dangerous and unhcalthly A'IlI'- boundaries of the State of: New York
age dumping ground under the Pnblic Hl'ulth Law nnd lll:ohihit Although Article 11 of the Village Law enables a village to
cumpmg
l III the tOW11 under the 'I'own Law, .' extend its Hewer system beyond its corporate limits and permit the
t T~ Attorney-General is authorized by law to render Ie/,\'Id udvi« use thereof: by the State, individuals and private corporations,
,~).? eel'S and, c1el~artments ,of t~JC State government on ]J', Ne(!es~ I find no statutory authority enabling such service to extend be-
S~Itiy, t!lerefme" the foregoing IS rendered inl'ormallv and unoffl- yond the boundaries of this State, In the absence thereof I believe
~l;ol;n:{.th ~. ~esll'fe thO be.. hel p.l'ul to you. It is not to }l0 eOllHidel'e(l your queation must be answered ill the negative.
opunon Ol' t e Attorney-General. " . 'I'he AttOl'Ile Jr-Oenel'ul is authorized by law to render legal advice
July 18, 1949 to officers and departments or
the State government only. Neces-
sarily, therefore, the foregoing must be considered as having been
VVIL~'ORD C, MILLS, Town Clerk, So<1UH, rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is not to be considered a
formal opinion of the Attorney-General.
Yrr,LAGE L~W, SECTION Sfl(3)., .
forAa vIllagc
public board
use, of trustees
' III
ay soII VJ'II age owned real 11l'Opol'l;J' not held July :30, 1049
ALTON W. rl'JrJAIJ1':, Village Attorney, Suffern.
This will acknowledo'e ' , . t E
relation 'to the sale of tw 1 ec,~\P. o' yom: l~tter of ;Jnly J2th in
by your village. . °
certain parcels 0:1 real property owned TOWN IJAW, SI':c:~'IONl'l170, 173,
Whore un lJxisting 111'0 clisl;riet is extended, it seems that the name of the
With respect to the first pr t J• I
parcel of land which is ')1'0) o?er y w U? 1 you deHeri?e. H~ a small districb JUILy be clmngell. It is suggested that the notice of hearing on the
i
owner, if it is not held f~r o~~~lr b,e CO 1(;, to I~n adjoining lanel- oxtcnslon nud tho order tht)rOOlll'efloet the new name.
by resolution or the board o~ t1'l1~tuse (~~ll palk) It may be sold 'I'his will acknowledge your letter of July 26th.
Subdivision 3) The sale is 1 , ' . ees 1 age Law, Seetion 89, You ask if the name of an existing fire district may be changed
. (HJ~5 Atty,-Ge~l. (Iuf.) (il)) , iot subject to approval by referendum when the territory thereof has been extended.
f 'I'he second parcel you descr-ibe lIS a "villasc 1'0'111" wI . ·1· I tl I know 01: no statute which regulates such a matter.
rom your letter l' ., . 1 '1 ( n ' <. IW 1 . g'll' leI' 'I'he 'I'own Law is silent with respect to the name any fire district
Such village streetUl~~l~~ ~c~ci~~~\th~hllUlc~fl of a school district. shall bear, although Sections 170 and 173 thereof seem to contem-
provisions of Article 14 of the Vill y ~ VI age .pursuant to the plate that the order establishing or extending the fire districts
the village may be sold b age aw not 111 actual use by should identify the district by some name, number 01' title at least
Section 311)· The b . d' y the1 board of trustees (Village Law to distinguish it from other fire districts in the same town.
r bieet . . . . oar S reso ution to sell such p ''t'
1 Ject t PI ermlSSlve referendum uncleI' Section J '39 rof)~]~e\;~lJ not
aw ane1'o 1:1e board of trustees may . t . ' . .. ' . 1 .age
~ Bearing in mhul the lack of statutory guidance and authority,
it would seem to me to he safer to restrict the right to change the
the proposition to the electol'ate ' nO,?ll It~ .own motIon, re:Eer name or an existing fire district to the time when an extension
139-d of the VilJag'e La'" (1946 A~t1t~ aaPI OPOlslt~on under SectIon thercof: is efT:ected... I believe that the notice of: hearing on the
. n y.- 'en. (.,ni.) 30).
 76 INB'ORMAI,. OPINIONS OF 'rIlE A'l'~l'ORNI'Jy-(h1NJ<JHAT,
proposed extension (Town Law, Section 170, Subdivision 2) sct
out the proposed new name and that the resolution extending such
district contain a finding to the effect that the name of the district
has been changed.
I believe the State Comptroller's office should be notified 0:£ the
change in name.
The Attorney-General is authorized by law to give legal advice
to officers and departments of the State government only. 'I'he fore-
goi!?-g is, therof01:e, rendered inf.ormally and 11l1~f{i()ially with a
desire to be helpful to you and IS not to he considered It formal
opinion of the Attorney-General.
August 2, 1949.
DECKELMAN & SCI-IADT, Jeffersonville.
TOWN LAW, SEC!eION 130(16).
It is doubted that a town bourd mILY limit by ordlnunco tho aizo anrl hOrso
power of outboard motor boats operated on wnters within tho town.
~his will ac~nowledge receipt of your lett 01' of July 20th in •
which you ask if a town may enact an ordinance limiting the 'size
and horse power of motora used on small boats on waters within
the town.
Although I beli~ve that a town board may properly regulate the
speed and 0l?eratlOns of such boats so that tho safety of bathers
and o~h~rs wIll.not be endangered, I doubt that such an ordinance
may limit the SIze and horse power of such boats.
T~e ~ttorneY-General is authorized by law to give legal advice
to ?ffiC~IS and departments of the State government onlv, 'I'he fore-
gOI~g IS, therefore, rendered inf.ormally and lUlOffi(d'ally with a
de~l~e to be helpful to you and IS not to be considered a formal
opinion of the Attorney-General.
August 4, 1949
HUGR S. COYLE, White Plains.
TOWN LAW, SEOTION 198(6).
ro~t seems that a lighting district may be extended. to include a prlvuto
This will acknowledge receipt. of your letter of ;ruly 28th.
Y~u say that a num~e~ of I:esId~nts on a road in the town have
applied to have an existing hghtmg district extended to include
SUCbh road.. I note. that you state the road in question is ){ot a
l, street o~ highway,
pu ,Ie
. SInce there.Is no question of the expenditure of town funds
involved, I believe the lighting district may be extended to include
a road not owned by the town zid ~ tl . . . '.
198 S bdi .,. 6·c 1 prOVI eu ne provraions of Section
, ,u ~v~s~on or t 1~ Town IJaw are complied with. As I read
t~at subdivision, there ~s no requirement that public str . ts or
higlrways alone may be lighted in a lig'hting district. ee s or
INT,'oHMAT, OPTNIONS 01,l 'PIm A'l'TORNT';Y-GENERAL 77
The Attol'ilCy-Oencral is authorized by law to give legal advice
to officers and departments of the State government only; The fore-
going is, therefore, rendered informally and unofficially with a
desire to be helpful to you and is not to be considered a formal
opinion of: the Attoruey·Clenernl. .
August 4, 194D
HAlVIIJIN & MrCJlINloJ, Bridgehampton,
OIVIL SJJ:JtVlCF: LAW, SIC(I'l'IONS 112, 8'i, BUB. f.
A l'otirlHl village polieemnn receiving a pension from the local village
pollee pension fund may not be employed as a special policeman by that
village without huvlng tho payment of his pension suspended during such
employment.
'I'his will acknowledge receipt of your letter of July 28th, in
which you ask if a retired police officer of the Village of Ossining,
receiving a pension from the Police Pension Fund of the village,
may, at the same time, be employed by that village as a special
policeman.
I note that you say that the officer in question retired on January
4, 1948. 'l'hat being so, it seems that Section 32 of the Civil Ser-
vice Law (effective July 1, 1932) would suspend the payment of
. the officer's pension while he was accepting other public employ-
ment.
Section 84, Subdivision :f: of the Civil Service Law, at this time,
appears to apply only to members of the State Employees Retire-
ment System.
'I'he Attorney-General is authorized by law to give legal ad-
vice to officers and departments of the State government only,
Necessarily, therefore, the foregoing is rendered informally and
unofficially with a desire to he helpful to you. It is not to be
considered a formal opinion of the Attorney-General.
August 6, 19,19
HuoII A. IJAUIW, Sltpervisor, Ossining.
Br,EC'l'ION I,AW, S~W'l'IClNS 137 AND 139-IJIMI'I'ATION ON 'rIm RIGH'r '1'0 DESIGNATE
on Nmu'NNl'lr. l'AR'l'Y CANllIlJA'l'l1Js-ACOEl'!I!.ANOm OR DECLINATION OJ!' DESIG·
NA'l'ION OIt No~nNNl'ION.
Whlle tho provleious of seetlon 137 /11'0 Inapplicale to party caucuses ill
towns (sell informal opinion 1U47, pp. 163, 192 to n. G. Horman, Aug. 14,
lIHU) , tho provisions oJ! section 139 are applicable to such caucus es, and a
person so nornlnated by a party o·e which he is not an enrolled member must
flle all aeeeptnnee, candidatea for justice of the peace being excepted from
such requirement,
As requested in your letter of August 9, I am herewith enclos-
ing copies of unofficial opinions rendered to Howard W. Robison,'
County Attorney of Tioga County, on May 26, 1947, and to Harry
G. Herman, County Attol'lley of Westchester County, on August
14, 1949 regarding Election Law § 137.
 IN),'ORMAT, OPINIONS OIi' 'j'Ug A'l"I'ORNEY-GENERAL 79
78

You further request to be advised whether unminatinns made

.
PI'lNAI, LAW, S\';C'I'ION lHGH; };J)t1UA'l'ION IJAW, SI'lO'I'ION Hil7-PUBI,IC O~'~'ICERH
_TN'I'lmNH'1' IN ()ON'l'ltAtl'l'H WI'I'IT POJ,I'l'IOAI, SUBDIVISIONS OF WHICH 'l'IIEY
at a town caucus are subject to the provision» of Blc(~1ioll Law AIm (H'I"WI'1I1H-····1N'I'I'llt1'lH'1' ()lo' IIORBANll In' PUI\I,JG OI"~'Imm,
§ 139, An otJwr\\'iHe vulid (wnll'i1('.!: between It board o£ oduentinn aud u eorpora-
So :Em' as germane to the question, that seetiou l'NHls aH :follows: tion would not he. rcn!loroil Invalid morely boennse tho husband of one of
tIll' Hl'hool lliHll'iel; I'ruHtl'oH IH till o/lll'.or und atoekhulder in snell corporatiou,
"A person * * * nominated for an ()f'fh~c otlwl'wiso than at a pl'ovidod thnl HUl~1l trusteo nns no personul interest whatever, either direetly
primary election, ,* ~ ~ if ~. * If nominated .for a puhlie of- or iudhl'('.l;ly, in UI(I eontruet 01' the eorporation,
flee other than It judicial off1~c by It party ot which he is not I have your letter of Septembcr 7 inquiring whether the Board
a duly enrolled meI~lbe;\ or l:~ ,... "" "" nominated for a publie of: Bdlwatioll of which ;YOl1 are a member may properly enter
?ffice other than a judicial office by more than on« plu'ty 01' into u (1011Rtrlwtion contract with a corporation of: which the hus-
md~pendent body, '"' * "" shall, +I +I oil. aeeept tho >II< '"' >II< nomi, hand. of: a hoard member is an officer and stockholder.
nation 01; * ;I< of each such pm:ty or Indcpondon] hody other On April 2, .I H4G this office rendered an opinion to the Depart.
than that of the party o~ wlpch he IS an ellrolled member mont or Audit and Control (Hl4G Atty, Gen. 1.1.1). discussing
otherwise such >II< '"' >II< nomination shall he null and void, '"' '"' II': in general the question of: the 1eg'ality of: contracts entered into
" Town. officers n01llin~tcd at cat!cuses are ohviously nominatcd between local offleers and their political subdivisions. I am en-
otherwise than at a primary election", closing' It eopy 0[' that opinion herewith,
Aside Irom statutory provisions the rule which has been set
. I~e~ICe, with the exception of justices or
the IH11.we, who are forth by the Court; of: Appeals is that a contract between a
judicial ?f:flcers, the requirements as to aeeeptaneo of a llomination municipality and one of: its of:flcel's iH against public policy and
ar,e .applIcable to,nommatlOns made at such a caucus, or hy a com- illegal (Jllatter of Clarl: v. 'l'own of H1Lssirt, 283 N. Y. 272). Penal
mittee on vacancies named by such a caucua, Law § 1868 makes it It crime for a public officer 01' school officer
th Sinc~fii~ \s n~t within the province of this office to ad vise others to be personally interested in a contract with a political subdi-
aD; Of lela s of the Stat~ government, the VIeWS herein (!XIH'CSsed vision H he was authorized to take part in making such contract,
are 111 ormal and unofficial only, Ii}dueation Law § 11il7 prohibits school trustees from being' per-
August 26, 1949 sonally interested ill. any eontraet which they make on behalf of
the district.
BOARD OF ELECTIONS, Goshen. I do not believe the proposed contract to which you refer
would violate either the common law rule stated by the Court
or the statutory provisions stated above, so long as the trustee
about whom you inquire has no personal. interest whatever, either
EDUCATION LAW, SEC'l'ION 2(H. directly or indirectly, in the eontract or in the, corporation of
of t~le~~~[~~l'~~e;~v~l~/~I~I1~llpI1~~tPIlIO:fP\lllll~Clli~)tl'l~ry aholll!l !I(~ in tho custody which her husband is an offleer and stockholder. The mere fact
oy IV ue 1 I IS II llllbl1WIHIOJI. that the trustee's husband may he interested in such contract
, , Tl:is will .acknowledge receipt of your letter of! AUg'llHt 18th in would not 1l1)PClU' to hring the otherwise valid contract within
I~latlOn to the custody of the funds of the' 'FIlHI' the common la w or statutory prohibitions.
LIbrary. ," . , Willi...
." t on J>,llUC
1·1'
Inasmuch as the .Attorncy-Honeral is not authorized to give
legal opinions to other than the heads of the departments and
As a public library, this institution is a aubdivision c)·f' the vI'1 agencies of the State OOVel'1l111ent, acting in their official capaci-
Iage government It 1 . . .., . ,. .-
charges for it
1
village. Whethe; the ~as 0 .~XIstCl.ICe separate and .I~pal't from the
. unc s It reeeives come :11'011I gil ts Ol' bequests
ties, the lol.'eg'oing' must he deemed to he entirely informal and
unofficial, given in the desire to assist you in the consideration
£
state aid th: SjVICeS, 1110l~eys a:ppropriated by the village ;)1: of your problem,
the vill ~ h uu s lare public funds over which the trensure» of
I age as eomp ete control (1946 Atty,-Gen. (Inf.) 17) Septemhcr 1.4, 1.940
The Attorney-General is auth .. d 1· 1 . .. Ilgo HOT,LAND, Smithown Branch,
to of:flcers and .. . .. om:e >y aw to gIVO logal advice
foregoing is, th~r~~~~~mentsl ,o,f dtl~e f S~ate govel'll III cnt only. '1'he
r enc
a desire to be hel ful to ere Ip onnally and unoff!nially with YJUmJl,II. AND 'l'RAF'Io'1O IJAW, SJW'J~IONS 54, 86 (I)-PARKING REGUI,A'I'IONs-Yn,·
opinion of tIle .A,Pttor YG?U anc IS not to be cOllHil!el'(J(} a formal I,M1NS-HNGUI"VI'WNS BY VII,I,AGE Olma!!' OF POLIOE.
ney- leIleI'al1.
A Vi1l11g'(l lIhioE of police is a nltlllieilllll official who may be authorized
September 12, 1949 by tho villag'o ll'g'iHln tive bo(ly to regnlale parking ill the villago as per-
mittPll by Vt'hhl1o 1l.I1(l 'l'rn/ll(\ Lu.w, Section 86(1); the places affected by
FRANK E. DEVLIN, lIf.ayor, East Williston. the lJllrldllg regulations must be nuu'kcd und in<1ieated by suitable signs.

80 INFORMAL OPINIONS 01" rrnc .A~l"I'OltNW,~-(h:NmtAr,
'I have your letter of September 7 regarding tho rogulation of
parking within the Village of Amityville pursuant to Section 86
subdivision 1, of the Vehicle and 'I'raffi« IJaw. ' LcgiHlative RCARion are not ineonsistont, offoct may be given to both and a
In reply to your :first question, I believe the chief of police of a
village is a "municipal official" within the meaning of Section
86(1) who may he designated by the legislative body of the village
to promulgate regulations relating to parking. S(JCOlltUy, although
Section 86(1) does not provide 1'01' public hearings when the muni-
cipal official proposes to adopt a regulation, the rt'quirOlnent of
notice in this respect would he the same as any which might gener,
ally govern regulations issued by the muniei pal Oflim)rH. However
I particularly call ;\,OU!' attention to the requirements in SeetiOl{
86 (1) that the places affected by the parking regul ations must be
marked and indicated by suitable signs. WIth regm'd to your last
question, relating' to Se~tion 54 of the V chicle. and '1' raffle Law,
I cal!' ?nly say. that Section 86 (1) ~l.lHl not Section 51L mllllowers a
municipal official to regulate parking when so authorized by the
village legislative body. 'I'he scope oJ: his authority is as defined in
Section 86(1) and Section M does not enlarge 01' restriet the power
expressly 89 granted.
In view o:f: the fact that the Attorney-General is not authorized
to give 1e&,al opinion:" to other than the heads of the departments
a~~ agencies of the State government, acting in. their official capa-
CItWS, the foregoing must be deemed to be entirely informal and
unofficial, given in the desire to be of aasistauoe 'to you.
September 19, 1949
HILDRETH, FOWLER & HILDRE'l'II, Villa,go Attorneys) Amityville.
'rOWN LAW, SECTION 170 (1), (2),
.A fire proteetion district may be establlshed or extended in accordance
WIth tho procedures sot out in the oited section.
Thi~ will aekn?wledg~ ~'e(\e,ipt of your letter of September 14th
w;her.em you ask If a petition IS necessary to extend a lire protection
district.
Section 170 of the ,l'own Law dealing' with the establishment 01'
e-';'te~~slOn of .a fir~ distriet, fire alal'ltl; distI'i~~t and flre protection
district provl~es two methods by which a fire protection district
ma;y.be established or extenc~ed. Subdivision 1 requires a written
petition r~q.u?stll1g the establishment 01' extension of such a district
and. S~bdlVl.slOn 2 autho.r~zes ~~e estab~ishmellt or extension of such
at district WIthout a petition 11: a public hearing on due notice has
een held before the town board,
The Attorney-General is authorized by law to render legal advice
to ?fficers and departments .of the State government only. Neces-
s~rlly, t!lerefore,. the roregolllg is rendered informally ailel unoffl-
eially WIth ~ desire ,to be helpful to you. It is not to be consldered
a. formal opnuon of: the Attorney-General,
September 20, 1949
CURTIS D. l\'IA1'TERSON, Syracuse.
INl"OItMAI, OPINIONS Ol!' 'rIm A'I"I'OltNEY-GENERAL 81
TOWN LAW, SNO'!'HlN 176(1.8), Ml AMNNmmj LAWS OE' 1949, CHAPTERS 172 AND
565.
Since tho lUlIlllUlllll1l1ts enacted by tho two cited chapters of the same
fire disll'ie,t muy now nnuunlly expend maximum of $1500 without a proposi-
tion.
'Phis will acknowledge receipt of your letter of September 13th
in relation to the maximum amount which fire districts may an-
nually expend without adopting a proposition pursuant to Section
17G Subdivisioll 11'1 of the ~POWll Law.
'l~lis snhdiviHiOll was amended by Chapters 172 and 565 of the
Laws of 1D4,D. 'l'he earlier chapter increased the amount of such
maximum annual expenditure without a proposition from $1,000
to $1 5()() while the latter chapter retained the $1,000 limitation
whicl{ hurl existed prior to the enactment of' Chapter 172 0:[ the
]~a~s or 1D4!l. 'l'hut; chapter did not otherwise amend the sub-
division in quest.inn. Chapter 565 of the Laws of 1949 in addition
to making eertuin ot!wr minor C~langes an:ell~led the sl:divi~io~1 so,as
to enable a 'fire district to establish a continuing spending limitation
above the normal statutory limitation on the maximum amount
which mip;ht he expended without a proposition. .
It is a well established principle 0:[ law t!>at,, where. a section
o:f: a statute iH twice amended at the same legislative seSSIOn., effect .
is to be given to the changes made by both amendments If they
are 110t lneonslstent with each other, Smi'th v, the People, 47 N,Y.
330 339· lJ{()11ia"~lel' v, (Jo'Uld, ,2M) N,Y. 379, 384; 1929 Atty. Gen.
119: Th~He amendments, dealing' as they do with entirely different
subiects, arc not ineonxistent and effect accorcli~lgly r,nust be .gIVen
to l~lOth. (1945 Atty.Oen. lOG). See also McKlllueys Tre~tlse on
Statutes (Volume 1, Mel\inney's Consolidated Laws) Section 393,
Page 4:lG.. . . . . ',' . 11 1
It follows 111 my opnuon that a fire d~strlCt may annua y expenc
a maximum of *1,500 without a proposition. .
'I'he AttOl'lley-Oeneral is authorized by law to render legal advice
to officers and departments of the State go,:el'llment only. Neces-
sarily, therefore, the foregoing is rendered ~n:formany and ~lloffi­
dally with a desire to he helpful to you. It IS not to be conaidered
a formal opinion of the AHorney-General.
September 23, 1949
& POWJms, Morrisville,
Hrm>HAltD'l'
Va.r,AGI" IJAw, 81':0'1'1ll1\'8 '.1,2, 59, 61, 80; . , .. . , ..
Where tho sueeosaful enndidllto fot· the office of villago trustee ISlIleh&,lble
to hUIel the offlcn, tho defeated candidate does not thereby become entitled
to the offiee,
This will aelmowleclg'e receipt of your letter ~f September 2.3.
You state that at the June 21, 1949 annual VIllage election m
yo~r village thl1t a llcrson was eleeted to the office of trustee. w~o
~was 1101. on that date the owner of record 0:[ re.al property wIthm
the village as is required by Section 42 of the VIllage Law.
 82 INFORl\rAL OPINIONS OF '1'1m A'l"J'oumly-(l!olNlmAIJ INI"()HMAI, O"INIONH ()Io' ~l'm~ A'l"l'OHNBY-GITINEltAL 83

Assuming, without of course here HIl,a now so de('iding, that 'dll'llIpts tu slH'I·i(ll'nllY ('OI1'ro!' S\1oh powO!', (c) no!' docs the
(11) 11,o~ ;C:l\c'I~\u~-t;('nllciI'K' npP;llllt'NI hy' tho enueus pOSSOBS B~lCh power, \ d) ,a
there is no question of fact presented with respect to your state- \'011:1111,1 I. 1I\n1l10 to Vl'()(,Ul'\' It eruul.idute Ilt t)\O first session, may adJOU(ll)l
ment and that the person in .question ha~ ~lOt Jll'~)v~m I,lil'l cligib.ility 101lU (!\IHllt \illW within till' iunltutlun» IlS to time flxod hy statute, and 0
to the office in accordance with the provisrous of Bec1lOIl 5? of the the 1.1lIw 0 (I.I' 1\ I'il'
fJ'omNustl'lH'l' .
vnt I' it!
•
II Ill'Op!'!' ronsou f'or such ad;joUl'll1l1Cllt,
Village Law, then I believe, the questions posed hy you in your
, 1'(\ lIving in l'ol'lllHlly to you,]' letter (~[' September 21, 1.:49~
letter may be ans>yered as :follo,,:s: .'
Where the candidate who receives ,the lllg'hcs~ mlll11>er of votes Ils\ft~n Ado;'IleY-llnlll~l'l\t may offil'll\ll~r advise only the officers of
is not qualified for th? office, the defeated candidate does ,not JJe- the State, 1' 1 tl
come entitled thereto, 111. the absence of statutory 01' other (lIl'CctlOn ,r e1}t Jive ([UOHlimls in relation to a tOW11: caucus at Wue 1 ·,.lCI'C
.I ou a" , •I' Ol' ('(\1'
, 1·'·
to the contrary (1947 Atty-Gen. (Inf.) 118). T' 0 II0111inntio!l made am t'ow t1 offices
, ., ,
This has been held to apply to village offices (Pea. ex rel. BlaUm' "as n . Cli' . . t ncnt
' 1 ,t' T ItW "14li denls witl.t. to\.~n catWUHes,. ,:10 rur as pel.' 1.
v, Lynch (1926) 219 App, Div, 1, 1I1r'd, 2GIL N, Y, 5:l4, reversing 1."\I ee ion . J ";j. it 'I S' Iollows:
128 Misc. 36), to the quos! iOlIH asked hy J'OU, I' pr()VIC Cl'l a. 1 • , ,

The trustee whose term in offlco expired 1111(1 whoso offiee was "Bnhje(~t to the ['m'og-Ding Jl1'Ov,i~ion~, (c1C~lling ;v,iiJ1l l:otwe o~
filled by the election 0:1' a person later found to he ineligihle thereto
tne
' . u I'le, (lfll1'PI'S the qualifleatioua 01. voteIH 1. iercat, am.,
I· ('an('ll.~,.~ .. , ' . he conntv ec mittec
holds over and continues to discharge the duties of' his office until
his successor shall be chosen and qualified, (Public Officers Law,
Section 5). As a holdover, this trustee if; entitled 1'0 vote upon all
*
h(:lll\'IlHHlt of tho CXl)(mHcs thereof) thc coun y. com ill '" ill
~ 1. muv, 1.1reS(.riho rules
caucuses (lesl'rihed ill t 1.
g·o.vol'.Jlin g tho «onduet 0:1: the
t'
liS sec 1011.
'it f.< 'it"

questions coming' before the board except that he may not partici-
pate in the appointment of his sueeessor in office (MaliC?' of Smith Bleetioll Law § I:n, xulxlivision 5 provides in part : . .. '" ,~ f.<
(1906) 116 App. Div, 6fi5, Peo. Y, Ji'1:chlie 76 Hun 20). POI' the , '. I' 't' 1 tes Ior town f.< 'it ill offices,
purpose of choosing' his successor, the office is nevertheless, deemed "Party nonrinations 0 cane ic a .. , 'I.' 1 1 tl ' iles of the
shall ilCl. made.. in the HllllllleI'j ].)1'(\1s(' 1'1 lCI *)~ * loe['l~'l('l'l a ~'ulc
to be vacant and the village hoard mar proceed to fill the vaeancy , , 'll< '"' 'll< In t Ie a lHcnec ' nc , . " ,
in accordance with the provisions of Section Gl of tho Village Law. county C,OlllIlll,tt co .,o: l' made in accorc1anec with
nominations lo!.' s:wh ,olfices may, ie * >Ii' f.<"
With respect to the conduct of the affairs of the village in the the existing pruetiee 111 the COlll1ty, ,
absence of both the mayor and the acting' mayor, Seetion 80 of
the Village Law provides in part as follows: It may be broadly stated that neither I-n~('.h rules no,~;h~'~;i~t~;~
"f.< f.< '*' I:I' the mayor and acting mayo!' arc 1>olh absent 01' " 1)1'11('.
mg '1·'11'('" .". l~wJ'nllY
.•. ma'.' .• he substituted for any speC!, P
unable to perform the duties of: the offiee, the trustees shall (]l the Bloetion Law, . '. 'd tl
appoint one of their number to aet as acting lllll~'or during the 't1 ",1 .en by the caucUH IH eVI en Y
'1'he "regular to;vIl ('(mun~' 'ee (}OH",. ' §' 15 ermits county
absence or inability of the mayor 01' the acting mayor appointed
by him, '*' * '*''' a spe(~ies (rl' (mmpulgn ('oIlllll1ttee: ]~\~,~~1~~~:{f~~rtiiiecf ('opies thereof
eonunitte;.s to adopt rUI~H~ and, l.;-(Pl11~"· of State, ancl further ,pro-
bc filed m th? offi(:e 0\ tl~? S?,<;.~ et r~iJes 01' the existing e.omnuttee,
The Attorney-General is authorhecl by Jaw to render legal ad-
vice to officers and departments of the State govcrlllll('llt only, vides that untIl thml' ~l< op ~()1l ,Ie , sl an continue to he thc ruleH
Necessarily, tl18re£ore, the foregoing IIlUHt be cOllsidm'ed as huving HO ['ar as ('onsi~tent With tl-!l~H, ('{HlPt,~I"I, 'Neitl~er 01' the county com-
been rendered informally and ullofficially hecause of tho Attorney- oI' the pal'ly lor that yo Itl(,~:, .lll~l , , lIlt T has ever filed any
I
General's desire to be helpful to you, It is 110t to be considered mittees of th,e two llUI,IO!' !1nl. t!lCS I~~ !O,~~~~~~~cs In towns have been
a formal ophlion of the Attorney-Oeneral. l'uleH hy windt the POWOlH 0.f 1mJ. y c ,
I am enclosing herewith copy of a letter :froUl the Department or defined' hy either limitation or enlargement, , " I' t1
Audit and Oontrol dated ,January 12, 1948 (th(\il' eode number . ',. , "1 ,b· the" existing pl.'actICe a .IC
2579), dealing with a vacancy in the office of town coullCilman, Bven USllll11I1g that I,t Ut~ f:cen town committee chosen at the
I believe this is the "decision" to which you retel' in your letter, caucuses held 111 your county ,o~ a ninations where the caucus
October 5, 1949 ~.auc:ls t,o have the pOleI' 1t~) Sl~_C~t~~~: committee has that power,
ItseH f11l1s t~ do ,so, I ( OIU ... IlL: .' fact that Election I~aw § l~O
MONROE R. DAVIS, Village Ati'o1'1wy, Woodridge. rrhis conchlHlOll. l~ l,taHecl, U!lOl,l t!~e, omination made olherw~se
----- provideR ['or the fIllIng o{- '~}(t~Cl~S Y\llacaucus) by "a majorIty
ELECTION LAW, SEm'IONs 15, 131 StJDn, 5, 140, JAil SUllD, 5, HCl, 314 SUlIn, 8-
POWERS OF TOWN OAUCUSES-]~Jl'Jl'Je,("l'01' FAIr.tfltE '1'0 NOMINA'l'J!) 'l'm"R1M'I'-
"than a. t (L fan Pl'1.11Wl '}/ (wIlle 1 .~~csl~~)\~n upon th; faee of the f.< f.<
POWER TO DELEG'ATE ~I'FIE MAKINO O.F' NOMINA'1'InN8-HWIP1' 01!' Oil IH!US 'J'I)
of: the committee 1'01f 11, vf~eall~~l. '*' «0". . .
AJ;lJOURN FROM. TIME TO r.ram, certHi.(\ate of: the * '"' 1l0IlIlUU.l.lOU ' " ' 'f:' 1
(it) Where a party caucus in n town fnils (;0 llominrttn nlld l'1('(~18 n so-
J tl at the "vacancy re ,ell'Cl
called town committee, the lattnr mny not maIm It 1I0millntiollj (W('1t thuugh
It seems clear to, me :I:ul't 101'I~10rey' il~ llominati~n oc'curl'ing fat'
to in the BlectlOn IJuw IS a vucune, ,
 INFORMAL OPINIONS 01<' 'l'lm A~l"l'OIml~Y-(ln;NlmATJ INI"OltMAI, Ol'INlONK ()J<' 'J'lm A'l"J'ORNli;y-(JIGNERATJ 85

:tOamte rfe~sont after the ~ominatioll is duly made, and under tl In the ius tall t ease tho uomination was not. declined, the candi-
e 0 Lac s contained In your first que rti . ' .ne date did not die, nor did he become disqualified in the sense con-
been made by the caucus at'all. su quesnon, 110 1l0111llmtioll had
templated by the Election Law. His nomination never became
po';~: a£s~~r to your second ~l:d third questions depends upon u effective hy the timely fuing of his aeeeptance thereof', His failure
e caucus to specifically delegate t h e H " · ro
.,
orlgma~
0
nominations to ani; committee· U-l '" ,;. ; I l"m to ~nakc to accept created a situation exactly similar to one where the can-

~o~;lJ~:e~~e~R~~l ItS been .the "ex~sti,l~g' 1~~'I~;~~i~cCi~~l\l:~ ~~:',l~~n~!~ci~~

cus failed t.o make any nomination, and the Bleetion Law fails to
provide 1'01' the making or
any nomination at all under such eir-
such. power, re committee described III your questions has no CUlDstalleeH, either h.y the eommittce on vaoaneies, or the members
of the county couuulttce represent.ing the town, or the so-called'
un~:/o r~our fou~'th ~nd fifth questions, It cauc~lN Once assemhlo(] lown cOlllmittee ehosol1 at the caucus.
t t' P per ~l~l?e, could und,ol1btedly have ad.iourned from t'
o nne, provic e It completed Its labors ill time to file .uuc 't;. ,," October f), 1!l4H
or nomination on 01' before Septemher Tflth (8 '1']' ' .': mll(wll.te
314 Subd 8. and t tl . . . , . "" • ee . 'J e('.11011 Law § WU,I,Ul\I .1, li'INNN, Sllc/,oln'l'Y, Bocwcl of Elections, Geneseo.
see '§ 143, Bubd. 5) ~s 0 ie general rule in yearx other than l!14l),

October 5, 1949 'roWN ]JAW, SIW'l'WN 2:1 j Bll1JCA'l'ION {,AW, SgC:~l'l()N 2112(3).
A member oJI It htltll'll of education 1Il1t;)' be a candidate for snpervisor. If
WILLIAM: J. FLYNN, SCG1'CtCWYJ Boord 0/ Eleciion«, ( [enoseo, lllc(',[~(icl to tlio luttor ollllil! hel vueutes his school uilltl'iet office upon ncceptiug
tho.,ollieie! of' KIt[Je)l'viHOJ'. He shuuld resign us bOl1rdlllmnber, however,
'I'his will acknowledge receipt of your letter of September 30.
139 HO 3J!
Er,EC'l'ION J.lAW SEC'l'rONS
-FILLING'VAOANcr~S'" J •. " , ,~'J BUilD, 9,...-DI,HIGNM'lON OIt NmlINA'l'ION You al:olk iX a member of the board of education of a centralschool
Where It party caucus in a town 1 ) , , t ' district may he it candidate for supervisor and what his status as
s~ch p,artYJ and he fails to file IUl acll~~~:;~'\ cs I.:, CHn;ll<lnto. lIot. cnrollod with as board member will be i:l: elected to that office. .
tee on vacancies, the members of th
'd
prescrtbed tm~e, such nomination is null I~cl 0., lc I ll()lll1~UL(;jon within tho
nlc. VOl J 1ll~(1 ]Hl\theJI' tho commit- Section 28 of the Town Law which deals with the eligibility of
town/ nor the so-called town cOlll~nitt: Cl;unty COllllnlttoo l'°lll'OSol\f;illg the town officers provides in part that "No county treasurer, district
candidate £01' such office. e cnosen at tho cnucus, llllly numo a superintendent of schools, 01' trustee 0:1: a school district shall be
I am replying inf'ormall to ' I .. , .. , eligible to the office of supervisor."
as the Attorney-GeneI" 1 y YO~I ettor ~r: SeptellJ hoI' 28, Ul4H Section 2112, Subclivision 8 oJ: the Education Law provides that
the State. a may offleially advise only the ofneel's or
"3. A trustee 01' a member of a board of education vacates
A town caucus of the Democrattc ner . ' . his office by the aeeeptunce of: either the office of: district super-
rolled member of the I:>· 11' e pal ty having nominated an en-
, 1 xepun lean party for a t ff
~eqlUree., under Election I.1a-W- I . ( '. .. :own 0 WO, • he WIlS intendent or of supervisor."
otherwise such * >If< nominatim § I' 3 Ito accept siwh. nomInation Reading these sections together, it has beOl1; held that a sc!1001
c ISla1,)]., Je null a 1 . 1" . '
.cep t anees, under Section 314 S . , . . . III VOl(. Such ae- trustce is not eligible to be votec1 for as a canehdate ror superVIsor,
not l~ter than September 20tll' l~fhvislOn !) shou~d, have heenfiled but that he vaeates the office of trustee as soon as he accepts the
desc~Ibed by you became 11ull ~ 1 ler.e ~le orIg'lllaJ nomination offiee of suporvisor after his eleetion thereto. ItL re: Kilburn ~1936)
DId a "vacancy in nomi t' ~; VOle1rore on September 20th, 157 Mise. 761. Peo. v. ](cnyon (1912) 152 AI.>P' DIV. 898, aff d. 207
,~140 then arise~. I thinknl~0~~nS::t~On11~~Fla~ed. by ~mocti()n IJHW N, Y. 692. \
. vacancy * >II III a part n . . n , PlOVldos III pari' that
raIl primary may be :fillelhyOl;ll~a;:lon lTIad~ otherwise thm~ at l{
He should resign as trustee however,bel'ore entering on his
Shown upon the >II >II< certi:ficate of tl
vacancy occurs * *.I! Ie
t °2
mnllt !,ee !·()filJ v!walwies
1l0mlllutIon in whi<~h tho
duties as supervisor. (lU33 Atty.-Gen. (Inf.) 143, 644, 646) ..
'rhe Attorney-Gellcr~lis authorized by law,to render legal advice
to of'ficers and c1epartlhents of tho State government only. Neces-
In the situation you describe a I . .' sarilYl therefore, the :(!oregoing must be considered as having been
the caueu~ contingent upon an' a~c~0I~ll1ai.lOn Was dnly n~nde at rendered informallY and unofficially because of the Attorney-Gen-
was a nullIty when not accepted b sptance, hut ,'iueh nounnation
The powers of the com 'tt y , epte~nher 20th. . eral's desire to be helpful to you, It is not to be considered a formal
140, whieh provides t'hatl~~a ee OIl Vae~1llele~ are Jintit('c] hv Bec'I'I'C)I] opinion o·f the Attorney-General.
bdl" ' , < va caney III a * * . . . '" .
y ec lllatlOll ~ oJ« * or by 1'1 l' tJ nOllllllll.i'lOll causcd
candidate . . . >I« oJ« lllay be mled ~ ~ e:",r 01' disqualification of the
Octoher 10, 1949
HAROW Bou/roN SI'mGOs, IJivingston Manor.

86 I:NFORMAL OPI:NIO:NS Oli' 'l'HE AT'l'OImI~y-nlG:NlGHAI,
'faWN IJAw, SEC'l'lON 184.
'rho ~unount of a proposed eontmet for fin' pl'ot('coj:iolJ should he SlIt out .
tho notic« of hearing thereon,
" 'I'his will ackn?wlec1/?e reeeipt of your letter of October 5 in rela.
~lOn ,to. the conslderatl?n which may be eharg'ecl by a villag'c :for
fumishing fire protoetiou to what J. assume is a fire pI'oteet'
district.
Section 184 of the 'I'own Law provides ill part liS :follows'
"§ 184. Fire protection districts
, ":llCne~'el:.the town board shall ha:'~ eHtahlish~lc1 a fire pro.
tection dlStlJ;ct pursuant to th~ 11l'OVISlOIlS of this article and
after a public h,earmg as hereinafter specified, the said town
board,shall provide.for the furnishing of fire proteetion withi
~nch fire l?rotectioll distI:ict and for that pUlTiose llla~' (Hlllt;'at~~
f,~r a period not exceeding fi~'c vcars with nuv ('ity, ineorpo.
l,d~e~l ~lllage, ~]'e ehstrlCt. or incorporated fire ('OlllJlHll~' main.
t(11111~1b ~c1e9.nd1e, m,ld smtable. apl:Hratus awl appliHlwes fur
the fUl'n~~hl~lg of fire pr~tectlO~l III such district. Noti('e of:
~n~h l:eal~~lg sl~E~ll l~e 'publ;lshed m <t.t leaxt om llOW8IHlPCl' hav-
ing .,~~nel ul ,.Cll culation III the district, Bneh nntie« shall
specifj , the t]~~e ,,:hen and plaee where said heat-ing will he
~~ld, and. d,es~mbe 1ll general tCl'l11S the proposed eontrElC't. 'l'he
lIst pnh~lcatlOn thereof shall be at least ten (Iavs prior to th
ft\~ speclf1;;d for snch, hearing, 'l'he amounr oi' allY contl'c;c~
ta. may e entered into pursuant to the pl'ovisi(;l1s of this
section together
•
with all otl,1Cl" expenses
,' '.
neeessurily
~:i ,~cC~S,ll{l~d h~: l:easo:1 of tlis establishment of sl1;\h [iJ·() dis.
sai~l 'd~s~~'ict ~l~~s~~~f;l,t,l\d.Ie;r1d .upon the taxable IJl'operty in
an 'I. b r : '1 , " C .ec 111 ie same mannar, at the same time
co C J t ~e same officers as town taxes arc assessed, levied and
ItleIcted and, when eolleetcd, the umonnt thereof shall be paid
to. 1~ SUpel,'VIsor of the town, The,' ", ,' .. " .. .'
CIty, 117cor~)or,ated village, fire distri~l~l~~~ ]~l)]. sh,a~J 11 1£
pany fnrlllshmg' such fire )l'ot I •. ' . . ' leO] POI a ,e(~
s,uunt to said contract." . I cctlOn, the eXpt'nse thereof pur-
It IS to he noted that the notice f 1 " ,'. ." "
eral terms the proposed contra '1' ,,01'l]Cctllllg lllllSt descrIbe J1j g'en-
for fire protection should be ~ . '1:' Ie Et~Ount proIloHed to he paid
taxpayers of the fire protectiol1u3i~tl~I,l~C( ~n the notiee s,o that the
I know of no provision of 1 ' } .l~t mclY be. aware of the same.
which may be chal'g'edfOI' Sll'cI aw w nC.l otherWIse fixes the amount
I' , 1 pro t ectlon
am sure you will impress u 1'1 ..•
quested this information frOl~ pon., Ie pl'lvate lwrSOl1 who has re-
upon the authority of the Att o~e OfQyoUl' emplo,n~es the limitatiou
eel'S and departments of th~ S~~~- ,eneral to officdally advise offi-
therefore the foreg'oin o' '11111't b jgoverument o.nly, Necessal'ilv
n' 1 ' b S
, noug 1 you mformally and unoffi" 11
e llllCerstood t I l
0 HIVe )Gen rendered
General's desire to be 'I 1 f l ' CIa y because of the A ttorney-
J ment. Ie p u III matters relating' to local gover;]o
October 13, 1949 . Section 200 of the Oeneral 1\Iullwlpal IJaw, wInch defines the
'l'rroMAs W, HSA:N , .Director of' ~a a f etAll'
'i/, ,Jany,
I:Nj,'ORMAl, OPINIONS or 'nm A'l"l'OH:NEY·GE:NERAL 87
PUllLHJ WonKS LAW, SI';C'l'WN 15.
A municipality 1lIIl;)' not l'il'cumvnnc the provlslona of. the cited statute hy
letting S(lp[\l'llte ceutructs for what is in offec.t one job of public work where
., III
the OXP(l1HlitUl'O involved exceeds $2500.
In aceordunee with om' telephone conversation of October 6th, I
am writing to eall to your attention certain information you orally
" ,lOll requested with respect to a proposed sower and water system exten-
sion ill your village,
' . I do not believe that yon may properly "break up" a contract
calling 1'0]' 1111 ('xp(mditl1],(~ oj' mO]'(1 than $8000 into four separate
contraets with em ill dividual expenditure of less than $2500 and
thus, in effect, (~i],('lllnV(mt the provisions of Heetion 15 of the Public
Works Law, Where a statute requires that a municipality advertise
for bids 1'01' eoutmcts for work OJ' materials, which involve an ex-
penditure ill eXt'C'SH of II specified sum, the courts have held that
such It provision «annot be aireumventcd by the letting of separate
contrads for what is in eil'ed one job or item of materials (Me-
Quillin, Municipal Corporations, l'::leetion 1200 (2<1 Eel) and eases
cited) .
Although there are no statutory directions for the publication of
notices for bill" on. eontraets 1'01' public work under Section 15 of the
Public Works Law, it i:-l suggested that in the case of a village, that
the provisions of BtJetio!1 :12G, Snhdivision 5 with respect to specific
advertising requirements be followed (lD46 Atty.-Gen. (Inf.) 4,8),
I am enclosing' herewith a copy of the Loeul Finance Law Hanel-
ineun'cd book for Villages issued b;)' the Municipal Pinance Commission, It
was issued in 1fl45 and should of course be considered in the light of
the amendments to the Local Pinunee Law since that time,
The Attornev-Geueralia nuthorized hy law to render legal advice
to officers and departments of the Htate government only. Neces-
sarily, therefore, the foregoing' lllust be ('(lllsiderecl as having beeu
, rendered inJ'o],IllHlly Hull lUlOfficially be('ansa of the Attorney·Gen-
t:v, to the eral's desire to 1)(' Iwlp:('ul to J'Oll. It is Hot to be considered a formal
1 e com- opinion of Ow Attorney-(l('lleral.
October' 1:~, ] DJD
DOYIJE & lVItTlI,Jo:Y,Villn[/(' Atlm'lwys, Seut'(!Cl Walls.
~l'UWN IJAW, flJ.:C'l'WN' '171\ (10).
Aftol' u ('OllljlllllY ~(ll'\'illg' tho (listrict ia ollec o]'ganize(l, the board o:E fire
(WllllllissiollC'I'S 11111\' liS U ]lrlll'ti('ul mil (Jer, detcrmiile not to ndmit a person
to llwmll(!I'ship. '
This will udmowledge l.'o(~ei]lt of' ,vour lettcr of October 6, ill
whieh yon ask whut minimum ag'e persons lllUHt attain to hecome
members (ll' a volnll tt'er fire ('Olll] Hlll.\',
.1
I know of 110 stll tnte whit'h ]>l'eeise1,\' l'e/-!:nlates slldl a IllaUer, bn1'
I lIlay (mil to YOlll' ntt(IIl'Lioll Ilw following infOl'llHltio]] which may
he heh,l'nl t.tl ,\';m, .' '.... '. .'
qualifi('ntions of exempt volunteer firemen in effeet requires a pel'-
 88 INl,'ORl\IAL OPINIONS em 'l'fm A'l"l'ORNIDY-Gm,nmAI,
'son to serv~ five years as a member of a. eompany after attaining
th~ age of eighteen years. To this extent It seems clear that serviee
pnor to. that ~ge may not be cal~ulatec1 ip~ determining whether a
person 1~ entitled to an exo~ptloI~ cortrfleu teo ~l'.hc Membership
Law, which governs the formation of fire corporations requires that
the subscri?ors to a certifi.ca~e n~ust he of fnJl age hut tluit law does
not otherwise place any limitation on the Hge of members. An in.
?orporatec1 fiI:e COmpa!l)' ~ould of COUl'SO regulate such a mutter for
Itself under Its constitution or by-laws, . By the same token boys
between the ages of I? and 18 might he admitted if the eonstHutioll
and by-laws ,,0 provide (of. ID44 Atty.-Gell, (Inf'.) 137). As a
practical matter because of. the control vested in a board or fire
comm~ss~oners over tl~e appointment or members to a fire company
~fter It IS on~e .ol'gan~zed, un~lel' Section 17G, subdivision 10 or tl~~
ro~n. La~, It IS optional WIth the board whether or not it will
permit persons under age to become members or the fire eomp
servmg the district. . any
. O~r:ain unemployed minors between the ages of 17 and 18 are
required to attend school ~mcler the Education Law, ~l'his require.
~nent eontrols over any obligations a minor might assume by beeom.
mg a member of a volunteer fir~ company and to that extent he
~ouI~ be precluded from answering alarms 01' engal:dllg' in the
tinguishmsnt of fires (1945 Atty,-Gen. 242). .. . . ex-
to T~ Attorney-General is authorized by law to render legal advice
sa ?l ceIs and,departments .of the State government only. Neces-
. eral'sd -i b
il
l'e~~~' e~1~r~fole, 1e foregoing l}1ust be considered as having been
.1;1 r l 1a y and U110ffiClall~: because of the Attol'Jlev-nen-
opinioneosfll.tel °AtethelpfuGlto you. It IS not to be considered a hmnai
Ie orney- . eneral,
October 17, 1949
LLOYD C, KEATon, 8eC1'cta1'y" If)sotu-d·0·'f '1;1' (1 . Division of Sufety.
.l./t1'C. .)ommtssionc.ws, 'I'illson.
YILT,AGE LAW, SEO~'IONS 58, 187.
While the statute does not exp 'e I " .
lage board of trustees require ~IlSSaYt~O re q Ul,1'O, l~ 1S .suggcstod thllt a vii-
undertaking. c c lIlg po lice JustIce to 'file an official
Wh~~~n ';!J~l ~~l~n~wledge !,eceipt. of .Y(l~r
letter of October 13
your village. an acting police justiee may be appointed in
Section 187 of the Villag'e Law provides as follows:
"187. Aeting police justice . Seetion 17G, Subdivision 10 of the ,'l'(l~n Law authorizes the
~he ?oa:'d .~f truste~s of a village in which the office of
polIce Jus~ree. Is~stablIshed shall designate a justice of th~
feac~, PflIce JustIce or attorney-at-law duly lieensed to 1'rac.
.IC ~ I}n t ~tlfllte or New York, residing in the l:lalllC eounty in
W I 1 t·l·1e
IefVIlage
. 11Ct" ' or a part theI'e
.. O.L.ft·IS I'll'1''uate
. d , as actmg
.' police
JllS ICe 0.. tIe villag~ whose salary or compensation shall be
fixed by the board of trustees. During the absence or inabilitJT
TNJ"OHMAT, OI'TNlONA On' TU!': A'l"I'OHNIGy-(lJ.1NERAL 89
of' the poliee justh-e to perform the duties of his office, the
acting police justice has all the powers and is subject to all
the Iiahilities of a police justice within the village."
A village police justine is one O[ the village officers required to
file an ofiieial undertaking under Section 58 oE the Village Law.
'l'hat Seetion also empowers It village board of' trustees to require
any other village of'fieer OJ' employee to likewise file an undertaking
if 'the board so determ ines, While the statute does not compel a
hoard of tJ'llstees to require the a(~til1g village police justice to file
sneh all lllHlcrtakillg, 1 believe that It village board of trustees
might well eonsider the wisdom of such an action in view of the
fact that sueh a village offlcer frequently comes into possession of
moneys or the village and 8tate. .
rl'h~ Attorney-G eneral is authorized by law to render legal
opinions to .oflio~rs and (~epal'tments or ~he State governmen: ~nly.
'l'he IoreC)'omg IS, therefore, rendered informally and unofficially
with a c1~,>il'e' to be helpful to you and is not to be considered a
formal opinion or the Attorney-General.
October 21, 1D4D
BnwAHD B. SMI'l'LI, l1iwyol', Middleville.
GgNJ'JltAI, M1JNWIPA[, LAW, SIW~l'lON 205; WOlm:~mN's COMPENSN1'lON IJAW,
Rge'l'IONS 2 (:1,4, ANn 5),:J (GIWl1l'1:l17 AND 19), 10 AND Ld-a.
Volul1tuul' lh'OllllHl nnd tlHlir familius UI'e untitled to the benefits provided
under Sl.'t\tioJl 205 oj' the General Municipal LIIW nnd to the excess coverage
provided under 1:110 npplieable proviaiuns of the Workmen's (Iompenaatlon
Luw, even though they ure under elghtueu yUill'S of age,
~l'hil:'l ill in answer to your letter of October lBth addressed to the
You ask if boys between the age of 15 ana 18 years, who are
members of' your volunteer nrc company, are entitled to the bene-
fits a/forded volunteer firemen killed 01' disabled in the perform-
anee of their duties under the General Municipal Law and the
Workmen's Compensation Law, .
It is my uuderstundlng that your fire company constitutes the
fire dcpm:tment of the Horseheads ]'ire District.
'I'he by-laws 01' coustltutlon or an lneorporatedfh'e company may
provide that boys between 10 and 18 11111;)' he admitted to member.
ship in the (JOU;PllllY (1!J44 Atty,-Gen. (Inf.) 137, cf. 1945 Atty.·
Gen. 242). .
board of fire eommissioners of a fire dIstrIct to orga11lze, operate
and maintain fire companies and to aPP9iJ,It il1hab~tant~ of the
district as members thereot ~L'hat subdIVISIOn prOVIdes III part:
"After' a firc company shall have been organized, and the
original members thereof appointed, other pe~$ons. shall not be
eligible for appointment as members thereof untIl they shall
have been elected to membership, pursuant to the by-laws of
 90 INl!~OUMAI, OPINIONS OF 1'IIIn A'l"rOHNItjY-GImJo:ltAr,
such company or, in case such company dors not have hy-Iaws,
by a three-fourths vote of the members of RIWh company
present and voting' at a regular meeting thereof, hut it shall
be optional with the board of fire commissioners whether it
shall appoint persons so rendered eligible."
It follows that since the fire commissioners have the option to
appoint persons to the company after it is once org'llniz(ld, that to
that extent, as a practical matter, it may set up uiinimum age
requirements for membership (d. Opinion J\tty.-G('n. (Inf'.) to
L. O. Keator 10/17/49).
The Workmen's Compensation Law provides benefits, in certain
eases, to volunteer firemen which are in excess of those provided
by Section 205 of the General Municipal Law, (Sections 2 (8,4,5),
3 (1, groups 17 and 19), and 10 of the Workmen's Compensation
Law). I find no provision which would bar the payment of: such
benefits to a volunteer fireman under 18 years of age. A volunteer
fireman under the age of IS years is one who volunteers his services
in a public emergency to promote to the public welfare rather than
an employee (1945 Atty.-Gen. 242).
It follows, in my opinion, that where the by-laws and constitu-
tion of an incorporated fire company so provide, and the board of
fire commissioners of a fire district have taken no positive action
to the contra:'y, that boys between the ages of 1G and 18 may prop-
erly be admitted to membership in the company. If, as regular
members o~ the company they are injured or killed in the perform-
ance of,theu duties as volunteer firemen, I believe they are afforded
protection under the General Municipal Law and the Workmen's
~~~?ensation Law (UJ'ben v. Town of Pendleton (lfJ2D) 184 Mise.
'I'he Attorney-General is authorized by law to give legal advice
to officers and departments of the State government only. 'I'he
foregoing is, therefore, rendered informally and ullof!icdaliY with
a desire to he helpful to yon and is not to 'he cOllsiclel'ed a ~forlllal
opinion of the Attorney-General.
October 24, 1949
JOHN M. DAVIES, Chief of JNn; Dellartment, Breesport,
'L'OWN LA iv, AR!l'IOT,E
XIII, SJ'C'J'JONS 210·2J G.
. T]~e town hoard nets as the governiug board or. all SllC!('iIII
chstncts created since April 8, l!JiJ2. .
'~his will acl~l~owledge receipt of your letter of Oldobor 21 in
which you ask 11 park e01l1lnissiol1ers should be elected to offi<lc ill
the Abele Park District.
Acc~rding .1'0 ~he records of the Department of Audit and Con-
trol this sl~eCl~l nnprovemen~ distriet was created on -July ie, HJ37.
fll SpeCIal11nprOVemel1t districts created in towns since April 8,
1932 are governed by the town board ('1'own Law, Seetiol1 (42),
and no commlsslO:l~l'S separate and apart from tho town board may
properly be appointed or elected therein. . AUTHUlt V. TJYNCII, Village ilUorney, Greenwood Lake.
TNl"OHH AI, OPINIONS ali' 'rHlD A'l"J'OHNElY-GENERAL 91
Artide 111 or th« 'I'own 1111\'/ which deals with the powers and
duties 01' improvement district eommissioners separate from the
town board does not apply to a distriet created since April 8, 1932.
('fown TJllW 2]()). It only applies to those districts wherein a
proposition to be governed hy separate commissioners was adopted
prior to August 1, ID:!H \ 'I'own TJ~tw, Section 341, Subdivision 19)·
. 'I'he Attomev-Genernl IS authorized by law to renden legal advice
to officers and dopnrtments of the State government only. Neces-
sarily therefore, the forcgoing' is rendered informally and ~lllOfft­
cially' with a desire to he helpful to you. It is not to be considered
a formal opinion ol! the Attorney-General.
October si, ID4D
MowroN IJ. Corum, Pvcsident; Al>cZe PM'k Pl'opcrty Owners Asso-
ciation, New York.
Vn,T,AON LAW, SJo:C'I'ION 224.
'rho eitm[ Hl'(,tiol\ prnvldea three methods oj' paying the cost of the exton-
sion of II villagll water HrHtOJll.
This will acknowledge receipt of your letter of October 25. You
state that yOl1I' village prop(~ses to ex~encl t~le vill~g~ water sy~tem
within the village. You say III part: ' In c10111g this, It, (extension)
of nccesaity, paHses certain properties which will n?t .in any way,
benefit from the extension of the water system. TIns IS due to the
geographical position of the land, it being a hard, soh~ rock
formation and the owner of the land would never at. any time, b~
able to tap OIl 01' use the water system under any CIrcumstances.
You ask if the village may "absorb" the cost of the water ex-
tension for the pieee of land in question. .
Section 224 01' the Village Aaw which deals with extension of a
village water system provides in p a r t : . .
"'II< >I« '"' 'I'he board of water eommissloners may determine
that the cost 01: extending the mains or distriJ:>uting pipes, as
herein provided, shall be borne wholly by the village, or wholly
by the owners of the land benefited 01' abutting on the street
oil which said work is done, 01' pardy at the expense of each.
>II< >II< >11<"
It seems to me that u: the village water eonnni~sion~1's elected to
have the assessnHmt paid on a benefit basis that It might properly
determine that the land in question was not benefited 1ll:c1 thus
make a very nominal assessment or 110ne at all. If the cost IS to be
improvernont b01'11e parl:ly b.y the village and by tl~e propel'.t~ ?en~fi,tec1 ,01:
abutting', under these circumstances I believe the VIllage might p(\~
the item in question. .
'I'he Attornev-Generul iH authorized by law to render legal advice
to officers an<:t'departments of: the State gov.el'l1ment only: ~eces­
sarilv therefore the foregoing must be considered as having been
rencle~'ec1 inl'orl;rally and unofficially be.eause of the A.tto~ney­
Genera'ls desire to be helpful to you. It is not to be consulered a
formal opinion 01! the Attorney-General.
November 3, 1D4·9 . .

92 INFOR.l',IATJ OPINIONS OF ~l'I:m A'l"I'OImBy-(lIIJNBHAIJ
VILMGE LAW, SECTIONS loa, 89, (3) i GIGNERAL MUNWIPAI, LAW, SIW'l'ION 77.
A village may sell village owned real property not held for 11 public use to
a veteran's organization for a fail' and adequate consideration. It seems
that a lease of such property might also be executed for It term of five years.
This will acknowledge receipt of your letter of November 1 ill
relation to the right of a village board of trustees to sell or lease
village owned property to a veteran's organization.
A village may sell real property not held for a pub lie usc under
Village Law, Sections La, 89, Subdivision a. There is no provision
of the. Village Law which provides that a sale of such village real
property is subject to either a mandatory or !t permissive referen-
dum (1947 Atty.-Gen. (Inf.) 10).
The sale of the property should, of course, be in good faith and
for an adequate consideration, although the precise amount of the
sale price is in the discretion of the board of: trustees. A gift of
village property is prohibited by Article VIII, Seetion 1 of the
New York State Constitution.
Your letter als? asks f~r h.ow long a !;ime a lease of village prop.
ertyto a veteran s organization by a VIllage board of trustees may
be executed.
I do not doubt the power of a village to lease lands held in its
corp~rate capacity as an ordinary proprietor and not held for a
public use (1947 Atty.-Gen. (Inf.) 10), While I know o:f: no statute
WhICh sets O~lt the exact period for which such lands may be so
Lease~,. I believe that the provisions of Section 77 of the General
Municipal Law are some guide in the matter,
That Section de~l.s with the le~sing' of public buildings 01' parts
thereof by a mlllll.Clp~1 corporatIOn to certain veteran's organiea-
tIons. and. to. orgalllzatlOns of volunteer firemen. There a lease of a
public .bmldmg' or a part thereof may be executed for a period not
exceeding five years. A lease of village real property to veteran's
post for the same term would probably be upheld.
a phases of municipal gove~'nment. It IS not to be considered a formal
The Attorney-General is authorized by law to' give legal advice
t? .offic~rs and departments of,the State government only. r.ehe fore-
going IS, therefore, rendered informally and unofficially with a de.
~Ire to be helpful to you and is not to be considercd a formal opin-
IOn of the Attorney-General.
November 9, 1949
W, O. FREDENBUHGH, vma.ge Clerk, New Paltz.
VILLAGE: LAW, SEm'ION l79-b.
If a b.oa~·(l of trustees fails to designate the chairman of the board of
apI~eals, It IS .doubted that the members of the boaI'd of appeals may olect
theu own Chall'lIIall.
! ;have your letter of Oetober 31 in relation to my informal
opnpon of Marc!1 25, 1948 with respeet to the mannel' 'in wjli~h a
chaIrman of a. VIllage board of appeals should be designated
You~ letter IS ,not, of course, "presumptuous". I am glad t~ have
your VIews on thIS matter.
TNI"OltlllAl, OPINIONI' (W '['1m A'l"I'Ol~NliJy·GENlmAIJ 93
I, note. that ".
VOl! are familial' with the opinion in question and
~'tl. ie ,1ioarc' 1.0 f appea' I's
my C'.(HH']mnou that the. CHurman I .
ith 01:
~;oulc1 he c1eHigllltt(J(t hr .pw l~om'd. or trllstees, of the v.lll.age, since
there are no Htatutory directions III the matter. (Opinion Atty.-
Gen. (Inf'.) to ,I: B. Ht. (h'l'llHtI.n, I~H(~. March 25, :~4~): "
You ask my view IIH to the rIg lit 01· the members o!,t!le board.of
appeals to elc'('~ H «huinunu if t ItC) board of trustees fails to desig-
nate such all oflH'er. . , , ,
UncleI' these C!,ir(~t1mstll\wI'H, ~ doubt tl~at the members ?~ t!le
board of appeal» lllUy Hl'Jl'd~ their own «hainuan'. AH ll1e~nbels of a
Stltt~ltOl'Y board, I elo not believe that they may exercise ,V0wer~
other than tlioao g'iVl'll to t!ll'In by ~tatllte (cf', Oa,nnon v. J.,owne1
(1H47) 188 MiH(\. fllili, Amtly fIold'I,no .0°1'/). v. l~dc;n (193<3) 23.8
A) 1. Div. B2H, 1!1-17 Atty..Gen. (Tnf.) (1). It scc~n~ to me t~l~t, If
foi\Ol1lc reasou OI' another the hoard of trlls~ees farls to. designate
a chairman, that the members c!f the, board of apP,ea]s mIg'll~ prop~
erly call tlliH fHC~t to the attolltl~JIl of: th~ board of tl'llste~s so that
the ovorsurht might he remedied, since It seems that S.ectlOll 17~-b
of the Village Law Impoaes certain c1ut~es upon a chaIr~naIl .wlnch
suggeHt the impOl'lltlw(l of tIm!; offieer ~emg propel'lr c1eslgn~tec1.
In view of your 11llUHUal interest III t:he matt~l of ~on~l1g ~nd
planning it ~night: he that you will eOJ,l~lClel' calling tln.s. sItuatlOI~
to the attention of your Senatol' and ARsemblymal1'So that the mat,
tel' may be examined and possibly settled by statute at the next
session of the TJcgisJatul'e.. . . . .
I am certain that von tire familiar with the. h;rrlltat~oJ.}- upon the
authority of the Atromev-General to render official opunons to ~~:
eers anrl departments of: the State government only. Necess,allly
therefore, the [O!'Og'Oillg' must be understood to have been furl1lshe~l
to YOU informally and unofficially because of the AttOl:ney-Genera~s
de~il'e to he heIl;f111 to local offlc~!'s, in matters rela.tll1~ to cer~alJl
opinion of the Attorney-General.
November D, ID49
ClIAHIJl~S A. HNI'III<Ol'l", l1illa(Jc Counsel, Lynbrook.
PURUC OI't'WmtH ]',AW,··-,Slll'l"ltvIROR-S'.rA~·JI) ]iJMPI,OYEE-INCOMPA~'IIlILITY, •
If thol't'l iA 110 iuenmput.ilrllity, a Stltte employee mn.y hole} the elective
offleo of Supm'viAlll' Itt tho snme time,
Tn answer to your letter of October ?I, 194~, .in which YO~~i~~
quire whether 01' not a State employee IS prohibited from ho '"
the elective office of Supervisor, there appears to b~ no statute
prohibiting a State employee from holding the elective o~ee o~
Supervisor, If the autie.s of YOllr employment. and the dutIes Zf
Supervisor do not conflIct, and the tnne reql1~re~ to be. devo~ d
thereto permit; the propel' a!s~harge thereof, It IS my VIew t at
yOll may serve in both capaCItIes. . " , .. L '
Sinee it is llot within the provlIIce of the ~t~omey'-GenelS.~o
render opinions to or advise others than oJficutls of: the ta e
 INFORlVIAL OPINIONS Ol~ 'I' lIE A'l"J'OHNBY-GrmBRAL
94
government, you will appreciate that the views expressed herein
are given informally and unofficially in an effort to be of: some
assistance to you.
November 9, 1949
VINCENT J. RUBIO, Yonkers.
PUBLIC OFFICERS LAW-JUS~L'ICE 01' '.rIm
PEAOE-S'l'A'l'E PItIHON GUAltTJ INGOM-
PA'l'IBILI~'Y.
A pOl'son holding the position of SUIte prison guard cannot at the same
time 110Id the position of Justice of the Poneo,
Your communication of: October 30, IfM0, addressed to the Public
Service qommission, has been forwarded to this office 1'01' reply.
You ask If a person employed by the State as a guard at Danne-
mora State Prison is eligible to hold office as Justice of the Peace
I?- an informal opinion dated March 9, 1926, Attorney Generai
Ottmger held that there was inc,ompatibility in the holding by the
same person o:f. the office of JustICe of the Peace and the appointed
office of the Deputy Sheriff at the same time. This holding' was
followed by A~torney, Gene~'al BCl~nett. in aI:
informal opinion elated
May 17, 1933 III dealing with a Iike situation. 'I'ho incompatibility
in such case, among other things, would he that the individual
as Judge might be in a position to rule on his own acts as an
officer, 1!nder, S.ection 15~ of the Criminal Code, a guard at a
S~ate prison IS ll~cluc1ed III the category of a peace offiecr along
with deputy sheriffs and therefore, following the same reasoninc
it woul,d app~ar that tl~e. position of Justice of: the ]~eae~ is iJ~~
compatible with the position of. a State prison guard and that it
cannot be held by the same person at the same time,
Since i~ ~s not within, the province of the Attomey-Geueral to
render OpIl1l?nS to or a,dvISe others th,an officials of: tho State govern.
m~nt, y?U WIll appreciate that the VIews expressed herein are sub-
ll;lltted informally and unofficially in an effort to be of some as-
sistanee to you.
November 9,1949
EUGENE TETNEAum, West Chazy,
YEItIOI,E AND TRA~'FIC LAW, SI~m'ION 54; P :\RKING l\1:I~'I'fomH IN Yn,l,AlIES._..•]i]S'l'AIl'
I,IHI-UmN'l' OF PARKING Al1'I.'HOln'J~Y-DISI'()Sl'rION OF FI"Es-No Pn<:IVISlON
FOR ES'l'ABLISHMEwr OF P MUONG AU'l'IIORFL'Y IN VII,r,AGIi:~, .,
Fees collected from pll1'king' meters may he used for filly l'1'0I)('r muulclpul
purpose. ..'
. Allswerin~' yom; letter of October 31, If~4n requesting an opinion
or; :-he, ~t~ollley-.ae1~;el'al a~ to the nee.es:-nty for the eHtalJlishmcnt
?f cl pmk1l1~ ,a~~tho~Ity to. :mstall pHrlnng moten's .in a village, and
,IS ~o the chstl1but~on of the fees eollected therefrom, I wOllld
ac1;rISe that tIle V,eh1C~e and 'l'1:affie IJaw" § 54, authorizes the legis-
latlVe body of .
a VIllage to prOVIde bv ordmHnce f01' tIle'
o l · ·
,t 11 /,'
• IllS a IhlOll,
INI,'OIUIAL Of"INIONR m' 'l'IUl A'I"l'ORNEY-ClENERAL 95
operatioll lllllintenance, etc.. of parking meters, and to fix and re-
quire the 'p!~Y1l1()nt 01'. II fee I'm the privilege of parking where such
meters are III OpCl.'a~l~m. . . . . '
There is no ]ll'OVIHlOll lit the statute to: tl~e establishment .of ,a
parking authority, Likewise, the, statuto IS silent as to t.lle. clls,tl'l-
bntion of tllCl'em.> eolleeted, and III tho absence of such Illlllt~t~on,
it is my view that they may be devoted to any proper municipal
purpose,
Sinee it ix unt with in the province or; Y,e Attorney-General to
render npinion» to 01' H<1\'h;(~ othm'H th:lll ol"fwllllH of the St~lt,o govern-
ment YOl! will appJ'C('iatCl that the views expressed hel',em are SU)l.
mittdd' ini'orm»llr uud nnoffleinlly in an eff.ol't to 11e of some aSSlH-
tance to you,
Nove~mher 0, 1040
CHAMIH:H 01" COM M Imm,;, 'I'nekuhoe,
Yn;r,AGF. 'LAW, Hg("I'/llNH 42, 4~, , .
It. is not lwlil'vl'<1 that tho ufllcos of Bl1porvis?1' and street eomnussioner of
II. vlllago within thl' aro leglllly inOOllllllltlhle,
\OWII
'I'his will aeknowledge receipt of your letter of November 11th
in which ron nxk ii' the same person may properly hold at t?e
same time the of(ic'f) of HupcrviHor and the office o~ street. comuns-
sioner of a village partly within the town of which he is super-
A person lllay hold more than one puII'
visor. ) IC 0 ffwe at tl:.10 ~aJ.n~ t'IDle
providing there iH no (\oJlHtitlltional OJ' ~tat.~ltor:y pl'olnhItlon 01'
ineompatihility preventing the holding of said office l~y t~le same
person (1!),~a Atty. Gen. (II~f.) riO), I find no constitutional or,
statutory bar ill. the present inatance. ., '. .
Puhlie oJ'fines are incompatible when then Eunotions are meon-
slstent and their performance by one and the same person results
in antagonism awl It conflict of c1utYl so that e~llcelVably. the m-
cumbent of' one cannot faithfully clIHcharge WIth propniety the
duties of: both. (Peopl» ex reZ. Ryan v',Orcen 58 N,Y. 2?5).. ,
I believe that the language 01: SectIOn 42 o~ t~e VI,lluge Law
"A person shall 'not }wlll an electiv? and appomtlVe. oJ~ce a,t t~,e
same time >II< >II< >11<" refers to an electrve and an appointive village
office, ' les i
Section 42 or the Village Law provic es 111 par t "N 0 P,'
crson shall
.. '.
be disquallfled from 1101ding It village office by reason ~~ holding ~
,
town OJ' «ounty office." Seetioll 4~ of that ~tatute P~OVI e\ in ).p~v
. "No perxon s11all he disqualified Irom holding office I~ra V}J~g~, v
reason of tho fact that he or she holds ,any ot~e: P11 IC 0 lee. .
It has been suggestecl that these sections ehm111a.te any questt~ll
as to ineompl\tibility hut it has been stat.eel, that the~n~st .t at
can he said with certainty is 1',l1,at t~ey eln11111ate any IPSO facto
forfeiture (1944 Atty. Gen.. (In£.) 1.)0): . b .. tl
. I cun see no immediately apparent lTI;CousJ.,<;teI;c y .etween 1e
. general duties 01: the l)ositions about wInch yon 11lqUlre but you

INFORMAL OPINIONS 01" TUE ATTORNEy-GENERAL
will appreciate that the question is not one which rests with the
Attorney-General to determine.
The Attorney-General is authorized to render legal opinions to
officers and departments of the State government only, Necessarily
the~efore! this reply must be ~nderstood t? have been furnish~ci
entirely informally and unofficially. This IS particularly true in
matters involving title to public office.
November 16, 1949
ADAM V. WASILESK1, Village Attorney, New York Mills.
TOWN LAW, SECTION 111; GENERAl, MUNICIPAl. LAW, Awl'. 13 i LAWS OF 1945
OHAP.556. ' the eOllllllissioncrH that voter's may "vote for any three candidates
A budget for a town recreation commission should be adopted in the same
manner as IS the budget for other town officers, boards lind commissions.
· This:vill acknowledge .receipt of your letter of November 14th
III relation .to the authority of a town recreation commission. ' attention to the g!t)('tion Comlllissioners that I felt that they were
· You ask. If a ~·ecreatI.on. commi~si~n may finally fix the salary of
ItS rec~ea~lOn ~Irector m Its p~ehmmary estimate and if the town
board. IS. requ~r~d. to appropriate a lump sum for the recreation
commISSIOn activities." . and the ad appeared as coming directly from the Election Comrois-
· Nei!her the ~own budget system (Town Law, Sections 110-121
inclusive), A~tr~le 13 of the General Municipal Law, nor the State
~outh Commission ~aw (Ch~pt.er 556, Laws 19'15, as amended)
?lVe a to.wn .recreatIOn eommission power to adopt a budget :[01'
Itself which is binding upon the town board. Under Section III
of the To~ .Law "every administrative officer, board, departm'e~t
and C?mJ:!1IssIOn of the town an.d of every district therein including
fire districts, except as otherwise provided in section two hundred
tw?-a, sha~l annually prepare and file with the town clerk detailed
estImat~s III writing of the amount of revenues to be received and
expen~Itures to .be made during the next fiscal year in, for and
b:y t~elr ,respectI.ve offices, boards, departments, commissions and
districts; . I behev~ that a town recreation commission budget
should be adopted I~ the same manner as i.s applicable to other
boards a~d commissIOn,s .(:,own Law, Section 112, Subdivision 2
(a), Bection 114, Subdivision 1).
It s.e.ems t.o me that the town board may fix the salary of the
~ecreation director and that the commission may not thereafter
increase such salary..1 believe that the town board may in the
to,,:n budget~ appropriate fixed sums for specific purposes ~r items
~hICh are binding upon t.he. recreation commission. I do not be-
lieve a lump sum appropriation may be made.
The Attorney-General is authorized by law to give legal advice
to Offi?el's. and departments of the State government only The
fore~?mg IS, therefore, rendered informally and unofficially,' with
a ~e~lre to be helpful to you, and is not to be considered a formal
opinion of the Attorney-General.
November 22, 1949 .
EMANUEL SCIIWARTZ, 'I'oum Aitor-ney, New York.
I NF()H~rAI, ()('INIONS (W '1'lm A'l"1'ORNEY-GENERAL 97
EI,ECTIONLA w, RNO'I'ION mJ(a).
Wh(~rc p!l'l'tioll eommiealonora insert in nowapapera advertisements un-
!tuthol'izptI lIy law, tho l'oat th(1rl1of is not a propel' county charge.
'l'his will at'knowledge receipt 01' your letter or November 15 in
whieh you ask if the cost o] certain newspaper advertisements re-
cently'inHcl'tcd hy the oleetion eommissioners of your county is a
proper county ehurge.
A tWPY 01' tho advertisement, which you enclosed, describes the
"voting procedure ['OJ' councilman" in a city in your county, 'I'he
advertisement states that the election eommissioners "have had
many telephone inquu-ies in reg'arc1 to this" problem, which, from
the context of the all vcrtismnellt appears to be information from
on thp. voting madlille."
I note that you indicate that the election commissioners inserted
these advertisements entirely upon their own initiative and that
you say "Whon. t his ad appeared in the first issue I called the
going outside of their le~'a~ authority to insert ,SUC~l .an ad. A£t~r.th~
first insertion tht1Y eliminated the words political advertising
(which aPP(1arS in the copy 01' the advertisement you enclose~)
sioners without any notation that it was legal advertising."
While all expenses incurred under the mection Law by th~ board
ofelectiol1s of your county are ('.ounty charges under Sectl.on 93,
Subdivision aof that Chapter, I find no authority therein em-
powering the election commissioners to insert advertisemen~s such
as are outlined above nor can I find any other statute which ex-,
pressly or impliedly grants such authority. Accordingly, it is my
view that the cost thereof is not a proper county charge.
I am sure that you al'(1. familial' with the limitation upon the
authority of the Attorney-Cleneral to render legal advice ~o officers
and departments of the State government only..NecesSarIly, there-
Pore the foregoing must be eOl1sIc1ered as having been rendered
illJO~'Jl1alh' and unofficially with ~ ~lesil'~ to be helpful to you. It IS
not to be considered a formal Oplll1011 or the Attorney-General.
November 22, 194H
WAWl'J[l, SCO'l"r McNAB, G01tmty Att01'ney, Schenectady.
GENERAl, MUNWIPAI, IJAW, SEC'I'ION 205.
Active rnemhorBOf volunteer :firocompalli.es include all I!1embers ~ctually
Olll!:llgedin fighting 1\ros, regardless of havlllg earned their exemption cer-
tificate.
'1~hiswill aeknowlcdge reeeipt oj' your letter of ~ovember 25 in
which you ask if "active honorary members" and. honorary memo
bel'S" of the Mic1clletownFire Department are. entrtled to the pro-.
tection afforded volunteerfil'emen under SectIOns 205 and 209 or
the General Municipal r " " , a w . .
You say "By the by-laws of the Middletown B'ire Depal'tmentan
 98 INFORMAL OPINIONS OF THE A1'TORNEY-Gl'lNImAIJ
active hon?rary member is a member who has served for five years
on the active roll and upon the payment of one ($1.00) dollar a
year dues has a voi?e and vote in the meetings of his company, An
honoral7 member IS a member who has served Jive (G) yeare on
the active roll but has no voice 01' vote iu tho moeting's of his
company."
In answering your query I assume that both categories consist
of members who already have. earned their exemption certificates
tl~at.the'y are all members 0:1' the fire department and that the onb~
distinction between these two classes of members is with respect to
the payment of dues and the voting privilege it carries.
It has been stated that the term "active mem bers" of the vol unteer
fire department as used in section 205 oj! the (Ieneral Munieipn]
Law, would apply to all members of the company who attend the
~res,. whethey t?cy have earned their exemption (wI,ti:lhmte or not.
Section 205 IS liberally construed by the courts to include all mem-
bel'S of the fire company who are actually engaged in lio'htiug' :lires
(1933 Atty.-Gen, (Inf.) 367), . n ,
. .!f ally" of~he members of the fire company as above described are
l;l1Jured while they ~lre engaged ill helping, t~ light a :lire 011 orders
from, the company h.ne ofhcers ~llc1 the GIllef of the department"
I be~Ieve .they are entitled to receive the protection «oueerninc whiel;
you Illqmre, . to ' to enact all ordinance regulating the speed of motor vehicles within
T}fi Attorney-General is aU\hol'ize~l by law to render legal advice
~o ,? ce.rs ~llcl ,departI,nent,s.of the State gov~rll1llent only, Neees-
saIlly,. the~efole, the foregoing nl~lst be considered as having been
r~nde~e~ Il1f,?~mal1Y and. 1~nofficIany because of the Attorney-
Gefn~IaI s d~SI! e to, be helpful to ~~ou. It is 110t to be considered
a ormal opunon or the Attorney-General.
December 6, 1949
MIClUEIJ A, GURDA, Corporation Counsel, Middletown.
Vn.LAGE LAW, SEC~'I01{S 228, 229.
U ~efor~ a vfillage may ~Idorce the colloctlon of water rents bJ' cutting' off
,1 supp Y 0 water, ordinances to that efl'twt must be udoptcd,
'~his will acl~nowl~dge receipt of your letter (d November 29 in
b;l~~di~~~, ~~~ ~i a VIllage Ill,ay eni'ol'(~e the collect~oll of wat:e~' r~uts
t d b f ne supply of water where no OrdUlaIWCS have been
enSac e, to en"o~'ce the .11ayment or such water rents, '.
f' t Iie adop-
ti eetion
f " 228'd' of the"Village
. L
Lam expressl Y .
•. ': ' .",
' J ::01'
J.H'OVHles
IOn 0 • 01 lI1an~es for enl'or~lI1g the collection 01' water rents.
In t~le absence of any such ordinanea .I do 11 t 1 .I' > \ •
A~'vlce(/nay bediscontinuec1 (cr. 1944' AttY,_G)en,)e(I~~~)tJl~}3 '1~9t~~
tty.- Ten. (Inf:.) 96). The Board of VV t , . 1 Ci .,'
sionel's must establish a scal . f ' 't f ' a er ane "ewer Comulls-
provisions of Section 229 o~ o. I e~l, s, (,lI the use of wa~el' under the
lished them provide for th/e~lllle 't!lla A La,~ a11.. d. havllIg' so e8tab-
t·. le
tIle VI'll age IJaw, I I " so
- aVlllg' · 'provid'
.ee 1011
1 tl,lereox un de]'
.. SC(·tion
..,....,
the statute shut off the 'wat ee! ICY may, under the terms or
, er serVICe O'f a consumer within the
IN1"ORi\fAIJ OPINIONS m' TIlE A'I'TORNEY-GENERAL 99
period set J'orth in the regulations and impose a penalty of a certain
perccntage of the bill on those consumers who fail to pay their
bills within the thue Het forth in the regulations,
'I'he Attorncy-G cnerul is authorized by law to render legal advice
to offinel's awl departments or the State government only, Neces-
sarily there 1'Ol'C, the foregoing must he considered as having been
renc1e~'od informally and unofficially because of the Attorney-
General's desire to be helpful to you, It is not to be considered a
formal opinion of the Attorney-General. .
De('embel' G, 1D·1!l
J, S'l'1':'VAlt'l' IJ'rmo,Villttge Att01'ney) Boonville,
VEHWf,I'J ANIl 'l'\tA~'~'lU TJAW, Sl.:u'l'ION 5<1-VILLAGl~ SPE]1D LIMIT ORDINANOE-
P\':NAw'ms ~'(nt VlOI,NI'ION,·-··SIONH,
A villag'll apecd Iimlt ordinance adopted pursuant to the cited section
should udupt the stlltutory 11l1lgUl~gO providing for the punishment for a
violation tllOl'oof, 'rho sign designllting the end of tho speed zone should be
similar in uppeuruueu to tho sign at the beginning of the zone but it is
sufliehmt if that ItIHt sign HLIIto the name of tho village and "End of Speed
ZOlW," Or similar wording,
I have J'OUI' letter of November 7 regarding' the provisions or
Section 5'.1: 01: the Vchide and '11ra fflc Law authorizing' a village
the village limits, You refer specifically to that portion or Section
54 which provides that such a village speeding ordinance "shall
fix the punishment for violation thereof', which punishment >J« '*' '*'
shall not exceed a tine or
011C hundred dollars or imprisonment
for thirty days 01' both sueh line and imprisonment"
In reply to your inquiry regarding the manner in which a
village ordinance should provide for the punishment for a viola-
tion . I believe it would be advisable for the village ordinance to
adoIJt the statutory language dealil,l(\' ,with punishment ~l1s~ead or
prescribing a different measure within the stat~ltOI'Y lIm~t, Ac-
cordingly, 1. suggest that the proposed VIllage ordinance ,wInch you
mention should provide that the punishment for a vlO~atIOJ.1 thereof
"shall not exceed a fine or
one hundred dollars or imprisonment
for thirty days or both such ll~Ie a!ld imprisonment," leaving it
to tho discretion or the sentencing Judge to Impose a fine or im-
prisonment within that limit in each particular inst8;nce,. , ,
Your last inquiry relates to the character of the SIgn indicating
the end of the ,speed zOI~e" I l~elieve that th~ :r~qui.:'ement of Section
54 that such SIgn be "similar ' to. the SIgn indicating t~e beglllnlllg
of the speed zone refers to the SIze, shape, style ,and, SIze of letter-
ing, etc" o£ tho first sign, and doe~ not ,necessarIly ~ncll1~e !111 t~e
language whieh appears 011 the 111'8t SIgI~. I~ a SIgn sImI~ar III
.. •
,
appearance and eOllsll'l1ction to the first SI~11 IS used to deSIgnate
the end oj! the speed zono and that second SIgn sets forth the n~me
or the village and it phrase sueh as "Enel of Speed 'zone," I beheve
that would ('Ol1stitute sufficient eompliance with Section 54,
°28 of,
As 'lOU are 110 doubt aware, inasmuch as the Attorney-General
is not" authorized to render opinions to other than the heads of
 100 INFORMAL OPINIONS OF THE AT'rORNEY-GENERAIJ
the departments and agencies of: the State government, acting in
their official capacities, the foregoing must be deemed to be en-
'.
tirelv informal and unofficial, given in the desire to be of assistance
to you,
December 8, 1949
JOHN J. GERAGHTY, Corporation. Oounsel, New York.
TOWN LAW, SEOTION 23.
It is believed that the offices of: member of: a town bonrd und fire diatrlct
eonnnissioner arc incompatible.
'l'lIis will acknowledge receipt of your lotter of' December 1 in
which you ask if the same person may occupy the offices of town
councilman and fire district eommissioner at the same time.
Because of certain duties which a member of It town board must
perform in connection with a fire district within the town, it has
been stated that the same person may not be a member of the town
board and a fire district commissioner, the offices being incom-
patible (1946 Atty.-Gen. (Inf.) 8).
I know of no case wherein this precise question has been ex-
amined by the Oourts of this State, however.
The Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing must be considered as, having been
rendered informally and unof:ficially because of the Attorney-
Gene:r:al's desire to be be helpful to you. It is not to be considel'ec1
a formal opinion of the Attorney-General.
December 9, 1949
OHARLES B. MOORE, Justice of the Peace, Grafton.
JURY TRIAL-WAIVER BY CORPORATION COUNSEL.
A corporation counsel may waive trial by jury in an action where $u611
trial is a matter of right, '
This willacknowledg'e receipt of your letter of December 5
requesting the opinion of the Attorney General whether or not
a corporation counsel o£ a municipality within the State of New
York has the power to waive a jury in an action in which a [ury
trial is a matter of right. . ney-General's desire to be helpful to you. It IS not to be con-
In Baird v, Mayor, 74 N. Y. 382, it was held that the defen-
dant Oit3,' had effec~ively .waived it~ right to a jury trial by its
co~du~t 111 proceeding WIth the trial of the reference without
objection, In the absenes of any statutory provision to the eon-
trary, I can perceive of no compelling reason why a corporation
coun~el may n~t .do so o~ behalf of a munioipality in the manner
provided by CIVIl PractIce Act, Section 426.
Since it. i~ not within th~ pr~vince of the Attorney-General to
render opinions to. or advls~ others than officers of the State
government, you WIll appreCIate that the views expressed herein
INI"OltMAIJ OPINIONS OI~ 'I'IIm A'l"rORNEY-GENEItAL 101
are submitted informally and unofficially in an effort to be of
some assistance to you.
December 12, 1$)49
JAMES '1'. GItmrrlN, Assistant COfz>oration Oounsel, Rome.
VU,l,AGlt IJAW, l:lEm'WNs 44, ·15. .
'I'lie roaolutiou of IL village hoard of trustocs chllnglll~ the nU~ber thereof
is not SUbjllct to fofofOl1dum 1101' need there be an election therein.
This will acknowledge receipt of y~ur letter of December. 7
wherein you ask if: a resolution of a. VIllage board of tru~tees m
a village of the fourth el.ass cha~gmg .the n:umber o~ trustees
must be approved at a special eleC~lOJl 01' IS subject .to referendum.
Within the limitations of Section .45 of the VIllape Law the
number of trustees may be changed In accor:ll1nce WIth the pro~
. visions of' Seetion 44 of that Law by resolution of the board of
trustees, , '. f: I Vill L th t
'I'here is no requirement 111 SectIOn ~6. 0': the 1 age. aw a
such a subject may be made a prOpOSItIOn to be submitted at a
village election. Sections 139. and 139-d. of that la~, as well as
certain other statutes, authorize or req~.ure the holding of refer-
enda upon vnrlous resolutions of the village bOI1~c1 but I .find.no
provision relative to the matter coneermng which you. inquire,
In the absence of constitutional or statutory authority there
can be no referendum (1044 Atty.-Gen. (InI:) 137). _ ;
The opinion of' the Attorney-General ~o which you .r~fer m your
letter (Hl03 Atty.-Gen. 26.2 L d~alt wltl.! the provIs~ons" oI. t~e
former Section 411 of the VIllage Law as It then read i.e, Within
the limitations herein prescribed the number of trus1;ees ma~ b~
changed by acZoXiting a lJroposttton 'therefor at a spectal elec'twn
(italics mine). '. di
The underlined language was changed t? Its present wo~ ~ng
by Chapter 27 of the. Laws of lfl27. Accordmgly the 1903 opmion
is no longer controllmg.. ,
'I'he Attomcy-General is authorized by law to render legal ad-
vice to officers and departments of the State government o~ly.
Necessarily, therefore, the foregoing m!lst be conslder~d as ha:lllg
been rendered informally and unofficially beca~se of the Attor-
sidered a formal opinion of the Attorney-General.
December 14, 1949
ANTONIO G. WAWO, Canastota,
'rOWN LAW SEG'J'WN 27(1); PUBLIC OFFICERS LAW, SmoTION 5. ,
' WIW;o 110 uppointmon] is made flt tho expiration of tIle i~J'm 0:1: ~J,\ ~t
pointive town alo)'k, tho incumbent continues in offiee as a 10 over un J ie
vacancy is filled.
"rhis will acknowledge receipt of your letter of December 9..
You say that the office of town clerk has been estabhshed in
 INl"OItMAI, OPINIONS OJ" 'l'miJ A~"l'OItNEy-aENERAL 103
102 INFORMAL OPINIONS OF THE ATTORNEy-GENERAL
been rendered informally and unofficially because of the Attorney-
your town as an appointive one. You ask as to the status of the General's desire to he helpful to yon. It is not to be considered
incumbent town clerk of your town in the event that the town a formal opinion () f: the Attorney-General.
board fails to make an appointment to that office at the end of
Ius present term. December :14, 1!l4D
I t is my view that the incumbent would continue to serve ItS IJIWN ,T. Aml'l'm,:, FhlPC/'visM', Clyde.
town clerk as ~ holdover until an appointment is made to 1ill the
vacancy (Public Officers Law, Section 5). LoeAr, l,'INANm: LAW, Rl':C'L'ION :la.oo; Yn,r,AOE LAW, SEC'NONS 41, 13g·a.
In respons~ to your further query, I ~mow of no reason why . In order to yotl' \Il'~n It bond resolutlon a person must meet the qualiflea-
the salary of a town clerk may not be fixed by the town board (:HJllH ~ll~ out III Sl'l:tlOu ill oj' tho Village Law with respect to voting at
~t a~ amount less t~l~n that set ?ut therefor in the annual budget Pl'OPOHltlllllH.
111 VIew of the prOVISIOns of SectIOn 27, Subdivision 1 of the 'I'own
'I'his will acknowledge receipt of your letter of December 10 in
Law which provides: relation to the qualifications of voters who may vote upon a bond
"* * * resolution adopted by the flnanee board of a village .
. 1. The town. board of each town shall fix, 1'1'01n time to Seetion 36.00 of the Loeal Pinanee Law provides that a referen-
tn;ne, the salaries of all officers, ?ffieials and employees of dum upon a bond resolution is to be conducted "* >I« * in the
said town, whether elected or appointed, and determine when' manner prescribed in Article five-A of the Village Law, as amended
the same shall be payable. >II< * *" . from time to time * * >I«.1l
Section laD-a of the Village Law provides in part:
T The Attorney-General is authorized by law to render legal ad-
vice to ?fficers and departments. of the State government only. "* *' * «< *. Electors qualified as provided by subdivision
Necessarily, th~r~fore, the foregoing ;must be considcrod ItS haviJi g two of section forty-one of this chapter, shall be qualified to
been re~dere~ informally and unofficially because of the Attorney- vote on any such proposition. It shall be the duty of the
Ge~eral s de~lr.e to be helpful to you. It is not to be considered village clerk to make and file in his office, at least ten days
a formal opimon of the Attorney-General. - before any such proposition is submitted, an accurate regis-
tration list of voters, alphabetically arranged, qualified to
December 14,1949 vote on the proposition, as shown by the last preceding assess-
RODERICK B. TRAVIS, Town Attorney, White Plains. ment-roll of the village. Such registration list of voters shall
be made available and disclcsed to any elector of the village
upon request. Any elector of the village claiming to be quali-
EnUCM'ION LAW, SEC'rIONS 253, 262, fied to vole upon such a proposition whose name is not in-
A member of the town board of t 1" 1 eluded in the registration list of voters therefor as made by
funds for library purposes need no~ b~~~ Witt! U11l 1Ull y approprlutes town
1
serve upon the board of trustees of a freen~~~ocia~~~ Cl~{ll.lO~ bo CO!llpol1lJd to the village clerk, may apply to such clerk for a revision of such
support. 11 ! irary rocorvmg town list o:f: voters to include his or her name. 'I'he village clerk
upon presentation of proper proofs showing that the appli-
Tliis willtlacknohwledge receipt of your letter of: December 8 cant is the owner of real property, 01' a part thereof, assessed
Y ou say iat t e electors of your to I ~,.
appropriate town funds f lib ' W~l lave voted to annually upon the last preceding assessment-roll of the village, whether
asaessed in the name of the applicant or in the name of another,
Library in Clyde.' or 1 wry pur poses to the Galen Free
shall revise snell list of voters to include the name of the appli-
You ask if the board of trustees t . cant, 'I'he application to revise any such list of voters must be
from the town board and if' tl' mus appomt a member thereof
must serve upon the boar ~ f- 'l~e1 town hoard member so named made at least five days before the date of the election at which
, . Cl 0 1 nary trustees. the proposition is to be submitted. The failure or refusal of the
qU~~i~~di~l~e;is:~~~dS~I~lElducation Dcpa~tmellt, ,the library in village clerk to revise any such list of voters to include the
library (Edu~ation Law, S~~~\~~~~~)tment as -u Ireo association
name or a qualified elector so applying may be reviewed in a
proceeding under article seventy-eight of the civil practice act.
1
to appoint a member of the le
I :find no statute which com I t11e. b
s b lure of: trustees thereof
provision of law which re uire 0;"11 care to that body nor any
'I'he C011rt upon petition for such a review shall cause to be
served upon the village clerk an order directing such clerk to
the board of library tnls~es. s a person so named to serve upon show cause why the statement should not be revised to include
the name of the petitioner. Such order must be made return-
.. The Attorney-General is atithorlzad b I t able OIl a date to be fixed by the court not less than twenty-
VIce to officers and departments of th y ~w. 0 render legal ad- foul' hours after the order is issued. If it shall appear upon
Necessarily, therefore the foregoing met S1tate g?:;ernment only.
" . us Je conslCLered as having
 104 INFORMAL OPINIONS OF THE ATTORNEY-Ch~NEJRArJ
the return of the order that the petitioner is qualified to vote
upon the proposition, the court shall order the name of the
petitioner to be included in the list of voters and the village
clerk shall revise such list accordingly. >Ito >Ito ~.'"
Section 139-a of the Village Law is part of Article five-A of that
Law.
Section 41 of the Village Law provides for the qualifications of
voters at village elections as follows:
"'ll >II< >II<
A voter at a village election, other than the first must
possess the following qualifications; , ,
1. To enti~le him or her to vote for an officer, he or she
mu.st be qualified t? vote at a town meeting of the town in
w~ICh he or she resides, and must have resided in the village
thirty days next preceding such election.
2. '1'0 entitle. him or her to vote upon a proposition he or
she must be entitled to vote for an officer, and he Or she must
also be the .owner of property in the village aSflessed upon the
last precedmg assessment-roll thereof."
The Attorney-General is authorized by law to render legal advice
to ?fficers and departments .of the State government only. Neces-
sarily, therefore, the foregoing must be eonsiderd as having been
rendere~ mf?rmally and unofficially because of the Attorney-
General s desire to be helpful to you. It is not to be considered a
formal opmion of the Attorney-General.
December 14, 1949
B~RTRA REIN, Secretary, Taxpa,ye1's and Property Owners Associ-
atwn, Island Park.
TOWN LAW, S,ECTIONS 175(3); 176(11), (ll-a).
I t~he ,clnef o~ a: volunteer fire department serving a :lire district mil.
~~;~~~rb1:~~1h~~~~~~~r:ft~~~~ :~r~::p~O~~tl~s?~~::.ai~~eeill~~~r!ti~~
officers submitted by th e company.
SSlOners approve nommahons for fire department
i his will acknowledge receipt 0:£ your letter of December 6
of : ~~fPo~se t~ your inquiry, it.is my opinion that the fire ~hief
. un eel' re company serving a fire district ma become a
(;~~~a~a~rJ~~
, ~~.~e, sofbfirae)commissioner,
u. . if otherwi~e qualified
At~0~~ye_G~:~na1 ~IoereCwiMth aStcobPbY 0df an informal opinion of: the
, . , u sated January 31 1949 . d'
ca~l~g ~hat a fire commissioner should not, at the same' tim~ a~:~
tChhlef of t~t~ fire department ~erving the district since the d~ties of
ese J?OSI Ions are mcompatibls,
. Sect,lOn 176, Sub. l1-a of the Town Law deals with the nomina-
tion of officers by a fire company.servlng a fire district and of the
approval thereof by the fire commIssioners. It provides as follows:
Im'OltMAr, OPINIONS Qli' THE AT'l'ORNEY-GENERAL 105
"Ll-a, The members of the fire department of the fire dis-
trict shall meet at a time and place designated by the board
of fire commissioners on the Thursday following the first
'I'uesday in April of each year and nominate persons for the
offiees of chief engineer and such assistant engineers as may
be provided for in rules and regulations adopted by the board
of fire commissioners. Each nominee shall be a member of the
fire department and an elector of the fire district. All nomina-
tions shall be made by ballot. 'I'he board of fire commissioners
at its meeting next succeeding the making of such nominations
shall cousider the same and appoint such persons to the offices
to which they are respectively nominated or, if a nomination
is not approved the board shall call another meeting of the
members of the fire department at which a new nomination
shall be made to take the place of any nomination not ap-
proved, which procedure shall continue until a full set of
officers iH approved."
It seems that a board of fire commissioners might give appropri-
ate consideration to the nomination by the department of a mem-
ber to serve as chief in the light of the statements of the enclosed
.opinion,
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily, therefore, the foregoing' must be considerd as having been
rendered informally and unofficially because of the Attorney-
General's desire to be helpful to you. It is not to be considered a
formal opinion of the Attorney-General.
December 16, 1949
STEPHEN .T. nICKER'l', !lire Oo'rnmissioner, Sherwood Park.
PERSONAl, PltOI'ElR'l'Y LAW, SEC'I'IONS 70 AND 70-b-LIEN LAW, SECTION 234--c'
if CoNDI'fIONAL SALES CON'1'lM.O'l'-OHA1'TET, MORTGAGES-ASSIGNMENTS-FIL-
ING FEEFJ-CER'fIFICNl'E OF SEARCH.
Fee f01' :filing assignment of condi~ional sal!'ls contract ?r chattel mortgage
payable irrespeetlve of whether assignment 1S separate tnstrument or com-
bined with original conditional sales contract or chattel mortgage form.
Vertflention of search by telephone does not constitute a certificate of
search. '
This will acknowledge receipt of your letter of December 13,
1949 making inquiry of the Attorney-General as to fees to be
charged by you in connection with chattel mortgages and condi-
tional sales contracts.
At the outset, I should advise you that there is a substantial
difference between a chattel mortgage and a conditional sales con-
tract, and that these terms are not interchangeable. Chattel mort-
gages are regulated by Article 10 of the Lien Law, whereas eondi-
tional sales contracts are covered by Article 4 of the Personal
Property Law, commonly known as the Uniform Oqnditional Sales
Law.
Neither of these articles define the word "assignment." An as-

106 INI10RJliIAIJ OPINIONS OF THE Ai'l'ORNJDY-GENERAI,
signment has been judicially defined to be a transfer of property
or an estate or interest therein by the owner to another, and also
the instrument effecting it (Noble v. Ft. Smith Wholesale Gr-oeery
Co., 127 F. 14-16).
Section 234 of the Lien Law fixes the fee for filing an assignment
of a chattel mortgage at 25c. Section 70 of the Personal Property
Law establishes the fee for, filing an assignment of a conditional
sales contract at 50c. My view is that such filing fees are payable
irrespective of whether such assignments are separate instruments
or are combined with the original chattel mortgage or conditional
sales contract forms.
The fee for searching for a chattel mortgage is 6c (Lien Law
§ 234). For conditional sales contract searches, the fee is 5c peI~
, year, per person, pel' book, plus 10c for each instrument shown,
plus 25c for certificate (Personal Property Law, § 70-b).
You further inquire if verifying a search by telephone eonsti-
tutes a certificate' of search. A certificate, in law, is a writing
signed and authenticated as to be legal evidence (People ex t'ol.
Sm.ith VS, Foster, 27 1I1isc. 576). 'I'elephone advice does not meet
s1.~ch qualification, You are, of course, under no legal duty to fur-
nish such gratuitous service, and you may insist UPOll a formal
search being ordered and paid for at the prescribed rate.
Since it is not within the province of 'the Attorney-General to
render opinions t? 01' advise oth.er than officers of the State govern-
~ent, you appreciate that the VIews expressed herein are submitted
Informally and unofficially in an effort to be of some assistance to
you.
December 20, 1949
P. W. FRASER, Oounty Clerle, Black River.
EDUCATION LAW, SECTION 1804, SUD. 6.
A sch~o~house may be sold by a common school distl'ict in accordauce with
the Pl'o':lsl~ns of the cited section where tho district, is included in It central
school distriet.
This will acknowledge receipt of your letter of December 5.
You say that a co.m~on school d~st:ict will shortly become part
of a central school dISt!Ict and that It IS proposed to sell the former
schoolhouse. You ask If the schoolhouse may properly be sold to a
volunt?er fire company for the sum of one dollar.
Section 1804, Sub. 6 of the Education Law deals with the sale of:
schoolhouses no .lo~ger used as the result of the formation of a
central school district, It provides in part as follows:
"6. The board of education shall not sell or otherwise dis-
pose of the property of. a~y such existing district except with
th~ approval of a majority of .the qualified voters of such
eXlst~ng c1lStrrct present and voting upon the question at a
meeting of such voters duly called by such board of education'.
For that purpose the proceeds of such sale or disposal or
r.roperty belonging to. such existing district, after deducting
the cost of repairs or Improvements made after the organiza-
INI,'OItlllAI, OPINIONS OJ!' 'I'HE A'I"rORNEy-GENERAL 107
tion of the central school district, shall be apportioned amOI1~
the taxpayers or sueh existing district as they ,appear upon the
last completed town assessment roll preceding the date of
sale'"' * oil."
Such It sale therefore may only be made after authorization
granted by a vote of qualified voters of the district and only under
the conditions described above.
I am informed by the State Bducation Department that it has
no authority to approve 01' disapprove any such sale.
While it would seem difficult to me to apportion the sum of one
dollar among' the taxpayers of the existing' district as is provided
by the Bdncatioll Law, the precise amount of the sale price seems
to he in the discrotion of the voters of the district. If the sale
price is so grossly inadequate as to constitute, in effect, a gi:l't ?f
school district property, it might be asserted that the sale was 111
violation or the provisious of Section 1, Article VIn of th~ N~w
York State Constitution which prohibits the gift of school c1IStI'Wt
property to any private corporation or association, .
From the provisions or law whiehl have called to y?lU attentI?n,
yuu will understand that your problem is not, one WhICh rests WIth
the AttOl'lloy-Gelloral to determine but one WhICh must he solved by
the people loeally: in valved and eoneemed. . .
'I'he Attorney-Cleneral is authorized by law to render legal advice
to officers and departments of the State government only: Neces-
sadly, therefore, the foregoing must be considered as having been
rendered informally and unofficially because of the. At.torne;y.Gen-,
eral'a desire to he helpful to yon. It is IJOt to he considered a formal
opinion or the Attomey-General.
Deeemher 20, 1l'W)
JOlINIJ. SCOINS, SeCI'C'tal'!J, ~F'i1'O DelJa1'tment, Staffo1'l1.
TOWN LAW, St,:e'PloNs HO, 220.
'1'11('1'0 is 110 provlaiun of luw l1.ulhOl'izing the holilillg o.f n. l'ef~l'()1l;da upon
tho wiadnm 111' pstllhlishing" It 'lire <listl';!'j; or 11 water snpply dlstrlCt, The
<le!:<!I'1l11nl1tillll must bo mude by tho town 1I0111'd,
rrhiH will acknowledge receipt of your letter orDer;el~hc]' 12 in
which yon Ray that. a town hoard contemplates submitting 10 l~le
cleetor~ of the town propositions to establish a water supply dis-
triet and It ril'e (listriet. .
• ']'he question of: the wisdom of the establishment of a special
dist.rict is a detcmnination to he made by the .town ~)oaI'd( T.0Wll
Law, Reet:ioll 1!l4) after the proce~lure set ?ut III Article 12 of:, the
'I'owu Law is followed. The same 1S true With respect to the estah-
lishment of' a fire district (1'OWll Law, Section 170) after the pro-
cedure set out in Article 11 is complied with. I know of no a~lthor.
ity to submit such matters to the town el~ctors concerned m the
f(;rm of a proposition at an election. SectlO.ns 81 and ?20 ~-f the
Town Law and certain other statutes authorIze the holdmg of. ~e:E­
erenda in towns upon certain propositions but I find no prOVISIOn
therein relative to the matters here involved. In the absence of
 108 INFORl\UL OPINIONS Of<' THE .A'l"J'ORNEY-GENERATJ
co~stitutioilai or statutory authority, there can be no referendum,
M~lls v. Sweeney, 219 N. Y. 218; lJlatt61' of MoCabe v,
Y,001'his 24B
N. Y. 401, 413; Reycroft v. Binghamton, 138 Misc. 237; Ilath~'Wa_y
v. Oneonta, 148 Misc. 695 (d. 1944 Atty.-nen. (Info) 37).
As you know, petitions to establish a special district or a tire
district must receive the approval of the Comptroller under the
'I'own Law. It might be that Mr. Hughes of the Department of Audit
and Control could be helpful to your town board in its problems.
The Attorney-Oeneral is authorized by law to render legal advie«
to ?fficers and departments of the State government only. Neees-
sarily, therefore, the foregoing must be considered as having' been
ren~ered .informally and unofficially 1;ecause 0:(' the .A,ttorney-Oen-
eral s desire to be helpful to you. It IS not to he considered a for-
mal opinion of the Attorney-General. . proper for a. village to transact buainess with the police justice of
December 20, 1949
GEORGE M. MICHAELS, Auburn.
HIGHWAY LAW, SEOTION 135·a.
The cited section deals with the methods by whleh snow may be removed
from county roads by towns.
This will acknowl~dge receipt of your letter of December 14, 1949.
UI~less a contr.act IS entered into between a county superintendent
of highways WIt~ a town superintendent of highways for the
removal o.f snow from county roads as is provided ill Section 1:35-a
of the HIghway I.J~w (added by Chapter 514, Laws of 194fl), I
know of no authority for a town to otherwise remove snow from
such county roads.
r hwonder! !f in your p~'o?~em, consideration might not be given
~ t e prOVIsIons of Subdivision a of Section 135-a of the Highway
aw 'Yith respect to .rentlllg t?W1l highway equipment to the county
;~~~~~ntendent of highways for snow removal purposes on county
T~ Attorney-General is authorized by law to render legal advice
to? eel'S and departments. of the State government only. Neees-
sar~y, the~efore, _the foregoing must be considered as having been
~n ere1 lllf?rmally and unofficially because of the Attorne~­
f enerlal s .d?SIre to be helpful to you. It is not to be considered' a
orma opnuon of the Attorney-General. . of the Village Law govern (1946 Atty. Gen. (Inf.) 69).
December 20, 1949
GEORGE II. VAN I.JONGEN, Town Att01'ney, Syracuse,
VILLAGE LAW, SEOTION 332; PENAL LAW SEOTION 1868-P 0 of the Village Law, Section 178 of the VIllage Law seems to indi-
INTEREST IN CoNTRAOTS WITH: POLIT~OAL SUBDIVISIONS ~~L~ II'FIOE
ARE 01"II'I?ERS-VILLAGE POLlOE JUSTIOE. ' H:ICH TRS-
HEY
A village police justice is a village ffi d date ordinances become affective in Article 6-A of the Village Law
police justice and the v:illage of whieh h~' eer affill contracts between su~h
policy and void. IS an o icer nrc contrary to public
Your letter of D~cember 12 inquires whether a village police
Tm'ORMA1, OJ>INIONH (n' 'rIm A'I"rORNEy-GENERAL 109
justice is a village officer and also whether the village may engage
in business transactions with a village police justice.
Sections 4:3 and 47 of the Village Law designate a village police
justice to be a village offlcer. On April 2, 1946 this office rendered
an opinion to the Department of Audit and Control (1946 Atty.
Gen. ] 11) diseussing in general the question of legality of contracts
entered into between local officers and their political subdivisions.
I am enclosing It l~OPY of that opinion herewith.
Aside from spcdiie statutory provisions (see Village Law § 332
and Penal Law § 18GB),' the .rule which has been established by the
Court of Appeals is that a eontraet between a municipality and
one of its offlcer« is agaim;t public policy and void (M,atter of
Ola,rJr. v, Toum. of Russia, 28:3 N. Y" 272). Accordingly, it is im-
that village.
Inasmuch as the Attorney-General is not authorized to giv.e legal
opinions to other than the heads of the departments and agencies
of the State gOV(lrnllll1llt, acting in their official capacities, the
foregoing must be deemed to be entirely informal and unofficial,
given in the desire to assiat you in the consideration of your
problem.
December 27, 11949
SOHUYLER L WEED, Village OlM'Jr., Babylon.
VILI,AGE LAW, AR'l'IOLE a·A,
A change in It village zoning ordinance adopted pursuant to the provisions
of the cited urticle should be adopted in accordance with the procedural re-
quirements thereof.
This will acknowledge receipt of your letter of December 13th,
wherein you ask when a change in a village zoning ordinance be-
comes effective. -
It has been suggested that where a village adopts ordinances
relating to zoning and planning under Article 6-A of the Village
Law, that the provisions thereof with respect to issuing permits
M contained in Section 179-e of that law, are mandatory, and
that where no such ordinances are adopted, that the provisions
of ordinances adopted under authority of Sections 90 and 90·a
1 assume that your village has determined to exercise the au-
thority granted under Article 6·A of the Village Law. The notice
required to be given of a change- under that Article (Sections 178,
179) is a longer, different notice than is r~quired under Sectio? 9,5
cate that a change might become effective immediately after a
"public hearing in relation thereto." I find, no provision as to the
similar to tho provisions 0:[ Section 269 of the TOWIl Law contained
in Article 16 of. that law which deals with zoning and planning
in towns.
 INJo'()rUIAL Ol'INIONK 01" ~1'Im A'l"J'ORNJ',Y-GENERAL 111
110 rNIeORM:AL OPINIONS Ole ~l'HE A'J"I'OItNEy-OI<JNI!~r{Ar,

I' to C'olltinuc his membership in view of Section 200, Sub, ~o

Logically then, it might be asserted that a chunge in ? VUI!lge l~mhe ,image Law which provides that a board of fire eommis-
zoning ordinance, adopted pursuant t,o tl~e Pl'0YI"lOIlH of Article O;L t .f <t,. vI'II'Ig'O suhject to the approval of the board of trustees,
6-A of the Village Law, becomes effective llllme(hately upon adop- SlOncrs 0, < . ", . ,. .

tion thereof in accordance with the procedural provisions of See- ,,* <I« * >1(0 >II< '"'

tion178 of the Village Law.

10 May llY rexolntlon authorize residents of described
te;'rit,or;y'o'ntside of the vihag~ to become members of ~he fi~'~
I do not find however, that this precise question haH been ex-
amined by the Oourts of this State so that I C~Ul do !ittle iuore than
to advance this thought to you for your conuideratinn. \ department of the village, WIth all the, powers, ~ut~ed
);'ivileges of such members, if s:lclt terrI~Ory_ l~ a ore e re
fi
r am certain that you are very familial' with the ('as('" cited in iJr()teetioll by the fire department of the VIllage, , ,
your textbook on zoning and planning' which would he applicable
to ordinances adopted pursuant to Section flO of the Village Law. If this aolution is inapplicable or l1ndesira~dle then f~otnhSIc~:~b~I~
Your letter indicates your familiarity with the limitation upon , . t tl is 8ug'g'e8tion· If the resi IIenee
mio'ht be given to . ~ s r . ' . '.
0 e
d by the housing
the authority of the Attorney-General to render legal advice to b '1 the villuue IS only temporary, eompe e , "h
officers and departments of State government only, Necessarily, outsi: e .ne 1 t·1 \" 'bel' intends to rctum to residence within t e
shortage anc .ne mom . ba f d th . then it
therefore the foregoing must be considered as having' boon rendered , .'" s soon as living quarters can e rounc '. erem,
informally and unofficially because of the Attorney-General's de- vIll<tge ,a. 'e that' the ease of the member in question can be ex-
sire to be helpful to you. It is 110t to he eonsidered a formal opinion see~ns Ito r~;, if under all 'the facts and eire1.1lnsta~ces~hereof" thtehre
ammec auu, .. , ' . t' . t abandon IllS residence III e
of the Attorney-General. . found that there IS no Intention 0 , ' , b. mem-
~ilhlo'e it mi'."Irt be determined that he Ina Y 4;) a
December 27, 1949 .. b , fib·l.'t nt (of ] 94G .Atty,-en, GContu(lrue
nr,ft)o .
bel' O:L.· the ro uepar me, . .".. 1" 1' 'tIl the zeneral cxemp-
Li.' . t·' 2( 1) 0.1' the Village lJaw. c ea fl WI
OIIARLl'~S A, RA'rIIKOPF, Village Counsel) Lynbrook. ,:Jee ,1011 '1' ides i part :
b

• tiona , .
of village firemen, . .t provI es 11l . . •
"* >II< <110 * *
VII,I,AGE LAW, SECTIONS 200, SUB, 10 j 209. 1 -, t who removes from the vil-
Whore !L member of !L village fire dep!\,l'tuH1l1 f; removes fl'OIl1 tho village to A member of n fire c ;Pal,'~l~; a full terl~, the time he has
tcrritory protected under II. eontmet for lire proteetlon lIP mny eontinue luge shall be allowed, as part tl ,. l',i! he becomes a mem-
membership ill the village flre department, under HOIlW elrcumstaueea. .1
con t';n:uou,sly as .
fireman
. , f 'leI'em, .l
or city; an d,
rrhis will acknowledge receipt of your letter of December 1G,
serveu
bel' of: the fl::C dep~rtmcI:t 0 n~n~l
tl _ village
t:
having complied with
UPOll eompleting a . l.ull ~erm., a hUI1~lred of the cenerel mum-
You say that under the by-laws of the Nyack J!1ire Department
"no person is eligible to membership or may continue as a member the requirClllentH 0·£ s~cltIl~ tWfl the pl'ivileo'es a~c1 exemptions
eipnl law, shall be entrt C( o"a . 0 .
thereof who resides outside of the boundaries of the Village of thereby secured to firemen.
Nyack Fire District, which are definitely described therein," You
" . , f . ili -ity with the limitation upon
ask "Whether a person now a member of the department, who, 011 Your let~el' lll,t1wlltes y'0l~r a 11 lU~al to render legal advice, to
account of the present housing shortage takes up residenee outside 8
the authol'Ity of the At.tor~Iey~ en~. vernment only, NecessarIly,
<if the fire district, would be required to resign as a member of: the oJ'I1eers and dept~l'tm~l~ts, of S~~lte goconsidCl'ed as having been
Nyack Fire Department, The argument has been advanced that therefore, ,t.l~e :!ol'egorng Il1~~}ficf:Ily because of the A~torney­
such residence outside of the district may be for a temporary rendered l1lL~)I'mIlIly andI tl to ou It is not to be conSidered a
period of time. only, and when housing within the district was General's d0811'e to be he p u. y .. , I
again available the member would again bccome a resident thereof, formal opinion of the .Attorney-Genela.
and for this reason he should not be compelled to resign,"
I can :find no record of: a "Village of Nyack 11'ire District" at the December 28, 1949
Department of Audit and Oontrol though I am informed that the CJUARLI!1S JJ. DE .MAJ~'rrNI, S eere-t.
a1 y)
l?i1'e Depct1'-tment, Nyack.
Nyack Fire Department of the Villag'e of Nyack renderfl fire pro-
teetion under contract to the Upper Grand View Pire DiHtrict and
the Villag'e of Grand-View-oll-Hudson, I assume tlHH'el'ore that 'EIPTS OF A 'VILLAGE WATER DEPART-
your query concerns the "Nyack Fire Department" of thc Village Vn,I,AUF. IJAW, SIW'NON 127-SUlt~r,~s ,;aE(CURREN'r ]}XlmSES AND BOND PllIINCl-
of Nyack. :l>WN'I' OVER 'l'lIm AMOUN'l' NEEDED 1 ~t '1'0 A. FUND CREATED )i'OR Jfu'ruRE Ex,
l'A~, INT]~Rmfl'l' MAY .IlETltANSIl'ERRE
If the member in question is a member in good standing and he l)l'~NH]I~H Ob 'lIIIl~ DI~PAR'l'.MlCN'J:'. . '
'
lives in territory protected by the fire department, it secms to me . f ' letter of December 27 111
that the by-laws of the department might be amended to permit rrhis will ac1mowledge receIpt 0 yoUl
 112 INFORMAL OPINIONS OW 1'HE A1'1'ORNIGy-(}r.JNIo:RAT, '

relation to the use of surplus funds from the mUllicdpaUy-opel'ated

water department in your village.
It .is my understanding that the Village of Le Hoy functions
under a special charter. I assume that you have examined the
provisions thereof and have found nothing therein whic'h would
precisely answer your problem. That being so, the provisions of'
the Village Law may be of assistance to you (Village Law, § 380).
If the earnings of the water department exceed the aniount
needed for current expenses, and the paymnt of principal or
interest due or to become due during the next fiscal year, the
surplus may be transferred to a fund to he known as the sinking
fund of the village water department under Section 127 of the
Village Law. I t seems to me that such surplus might be accumu-
lated for improvement and expansion of the water department
facilities.
'I'he Attorney-General is authorized to render official opinions to
officers and departments of the State government only. Necessarily,
therefore, the foregoing must be understood to have been furnished :
to .you entirely informally and unofficially with a desire to be
helpful to you. It is not to be considered a formal opinion of the
Attorney-General. PART II
December ?9, 1949
INFORMAL OPINIONS OF THE ATTORNEY GENERAL
JOHN R. GRANEY, Le Roy.
OF

GENERAL INTEREST

. (113J

INFORMAL OPINIONS OF THE ATTORNEY GENEUAL
OF GENERAL INTEUEST
ELEC'l'ION I,AW, SEC~~IONS 15 AND 31-0RGANIZA'1'ION AND RULmS DE' C()1<[l\rI'I",l'~mS
-RECOMMENDA'l'IONS FOR ApPOIN'l'MEN'l' OF COMMISSIONERS OF ELmC'l'ION.
'I'Iro certificate required by section 31 as a prerequisite to the nppointmeu t
of an election commissioner must reflect the majority opinion of the county
committeo, and where such certificate indicates that in fact it was only the
executive committee which acted, the board of supervisors may not mnke
any appointment bnsed thereon.
I am replying informally to your letters or January 5, 1949 and
January 11, 1949, as the Attorney General may officially advise
only the officers or the State. . ,
While a county committee may, under Election Law § 15 adopt
rules, including a provision ror the creation or an exe(mti~e com-
mittee (ThaYM'v. Ganter, 174 Misc. 394), which committee would
be one of those provided for by section 14, the powers conferred
and the duties imposed on the county committee cannot be dele-
gated to such committee.
Tl~e recommendation provided ror. in Election Law § Bl, is
required to be made by the county chairman. But such recommen-
c1at~on. must be based upon a. certificate that "in the opinion of a
majority of. such committee (i.e., the county committee) pursuant
to a resolution duly adopted," the person so recommended "is a fit
and proper person to be appointed an election couunissionen,"
Because or the: use or the phrase "pursuant to a resolution duly
adopted" it is obvious that the opinion of: a majority of the coni-
lllItte~ Cl~n only be obt~ined at ~ meeting thereof', at which meeting'
a majority of the e'!'dtr'e committee (not a majority of a quorum
present at the meeting) supported an appropriate resolution.
H tl;e n~atter in pare:ntheses in th~ certificate, copy of which is
embodied 111 your inquiry, were omitted from the eei-tifleate, the
board of supervisors, i~ they made any appointment at all, would
?e compelled to appoint Ruth W. Keller, because without the
Inserted matter the certificate would be in strict aecordanee with
the Election Law.
However, cle~pit~,the certifi?atiOl~ that the opinion of Cia majority
of: such C01l1l1uttee. was certified 'pursuant to a resolution duly
adopted at a meeting held December 21st, 1948" it affirmatively
appears that the opinion or a majority of: the county committee w~s
never obtained; that no meeting of the county cOl11~littee was held ;
and that the only endorsement or expression or opinion claimed to
have been obtained was that of: the executive committee.
A .state 0.1' bounty committee of a party may adopt any rules
relative to .its management and control not inconsistent with the
provisions of the Election Law, but cannot adopt any rules relating
[114]
INFORMAI. OPINIONS OF 'fHE A'l"fORNEY-GENERAL 115
to its membership or the manner of its election (1911 Op. Atty.
Gen. 677; 1.' heofel v. Butter, 134 Misc. 259, aff'd 227 App, Div,
626) .
Under all the circumstances, it would appear clear that the
Board of Supervisors has not received a certificate which complies
substantially with the requirements of section 31, and therefore
may not make any appointment based upon the certificate now
before them (1933 Atty. Gen. (Inf.) 250).
January 17, 1949
FRANK J. KIWNENBERG, Oonnty Att01'ney, Lockport.
CONSICltVA'I'ION" LAW, SI~C1'ION 180, SUDD. 9-HUNTING, TRAPPING AND FISHING
LWENH1';H-()UAl"1'lms 235 AND 2~b1, LAWS OF 1948-CONFLIC'1' o~' LAWS.
Women (',itizen residents were and are required to be licensed in order to
tuke fish by Hllgoling, ete., OIL and after Jan. ~, 1949, and C~l. 64~, L. 1~48
did not revive tho oxemption from such rcqUlrement contained m SectIOn
180, Bulltl. 9 prior to the passage of Ch. 235, L. 1948.
I am l'epl;ying informally to :rour lett~r of January 13, 1949, as
the Attorney General may offieially advise only the officers of the
State. . ., 1
Chapter 235 of: the Laws of 1948, as appears by ItS tit .e, was
enacted for the sole purpose of Hrequiring women to have Iicenses
to take fish" etc. It affected only the second paragraph or sub-
division 9 of section 180 or the Conservation Law, It was passed
by the Legislature and went to the Govel'l1or on Febru~ry ~5, 1948.
Chapter 641 o:f: the Laws of 194,~, as appears by I~S tltl~, was
enacted for the primary purpose of co:n;rbnllug into a single hcens~
* * 01« the two different licenses now requll'ed totake deer and bear.
It was passed by the I/egislature and sent t? the ~overnor on
Murch 12, 1948. It made numerous changes m se.ct;on 185, and
slight changes in seetions 180 an~l ~~2. It left th~ orlgmallanguage
of the second paragraph of subchvlslon 9 of sect~o~ 180 unch~nged.
Did the inclusion on March 12, 1948 of the ?rIgI:ral exemption or
women from the necessity of obtaining a fishing license, repeal by
implication the action of the Legislature. two weeks previously, m
removing from the sta.tute such exemptIOn ¥ .•
'I'he situation respecting these two enactment~ ~s closely analo-
gous to the situation described ill the enclosed opmion a~dressed to
the Board of Elections of the City of New York on ApI'll 30, 1946.
Applying the principles therein discussed to Chapters 235 a~d 16t
1
~f the Laws of 1948, it would appear that there was 110 rev~va .y
Chapter 6L!1 of the exeulption from license orlgll:~lly con~amed I~
Subdivision 9 of Section 180, and that. womon. citizen reSIdents 0
the State were and are required to be licensed III order to take fish
by angling, etc., on and after January 1, 1949.
J auuary 21, 1949
W. B. MASON, Hornell.
 JNl"OIUIAL OPINION:'; OP 'rilE A'l"I'OHNgY-GENERAl, 117
116 INI"ORMAL OPINIONS 01" THE AT'l'ORNEY-(}IDNERAL

SOCIAL WELFARE LAW, SEC'J.'IONS 102.1, 210.

and Markets Law, The question of the validity of these dog.
The mere faet that an applicant has legally responsible relatives who are
licenses issued by the City of Buffalo when a dog was removed
able to support her does not disqualify her from receiving Old Age Assist. from such city was rendered academic by the repeal by Chapter
ance, if she is otherwise eligible, lind the relatives are not willing to support 217 of the Laws of Ul46 of Section 104·a of the Charter of the
her. City of Buffalo relating 'to the licensing of dogs in said city ..
You wish to know whether a person who meets all the eligi- Under Chapter 219 of the Laws of 1946 the provisions of Article
bility requirements 01 Section 210 of the Social Welfare Law 7 of the Agriculture and Markets Law were made applicable to
may obtain a grant of Old Age Assistance if she has sons abl~ the City of Buffalo 011 and after the effective date of the act,
to support her. April 1, 1946. .
. The AttOl:ney General is authorized by law to render legal At the present time the provisions of Article 7 of the Agrie-
aid and advice to officers and heads of departments of the State <mlture and Markets Law relating to the licensing of dogs are
govermnen~ only:.. Therefore, this letter .is not to be regarded
now applicable to all cities, towns and villages of the State with
as an. official .0pmlOn but only an unoffleial and informal effort the exception of the City of New York I do not believe it was the
to assist you m your problem. intention of the Legislature to require an owner of a dog to apply
The mere tact that a person. has !egally responsible relatives for a separate dog license in every county or town in which he
able to support her does not disqualify her from receiving Old might harbor It dog for a particular length of time. Rather, the
~ge Assistance,. providing she is otherwise eligible, and the rela-
intention was to require a person owning or harboring a clog to
tives are not willing to support her. make application for a license to the clerk of the town or city in
However, as y~u know, if O).~ Age Assistence is granted the which the dog was harbored or kept at the time said application
applIcant,. a publ,Ic welfare official, .by the provisions of Section was made. OUCle obtained provided it was outside of the City of
102.1 o~ the SOCIal Welfare Law, IS empowered to bring court New York, said state license would be valid for the remainder of
proce~dmgs to compel any person liable by law for support to
the Iieense year in any city or town except the City of New York
contribute to the support of any such person cared for at public into which the dog might later be removed or kept.
expense, OJ' a person liable. to become so dependent. . Inasmuch as the Attorney-General is authorized to render
opinions only to State officers and departments, the foregoing
January 31, 1949 opinion must be considered informal and furnished in an effort
GLEASON & DOYLE, Auburn. to be of assistance to you.
,
February 1, 1949
AGRICUWURE AND MARKETS LAW, SECTION 109.
ALBER'I' T. DECKER, Village l1ttorney, Liberty.
The owner of a dog is not requi d t I '£
ever! city 01' town ~n which he ~~~tt l~a~~g/a 3~ga f~g~~tllerg~~l~i;~~~e :h
~ ~m~'ton~e Jbta~ed, such license is valid anywhere in the Stnte oxe~Pt CONSICltVA'l'ION LAW, S:mO'!'ION 151, SUBD. 13; SEC'l'ION 164; SEC'NON 956-COM-
Pl\oMISlil OF CIVIL PICNALTY-POWERS OF CONSERVATION DEPAR'l'MENT RELA-
e uity 0 ew ork, where u separate license must be obtained.
TIVlll TO FISH: AND GAME-POWERS OF ,GAME PROTECTORS, FOREST RANGERS
Receipt is ack~o:vledged of your letter of -Ianuary 20 1949 AND S'l'ATE POI,ICE.
c~fie~~'ub~ oPllNon ~ tO whether a dog license issued' in tl~~ The Conservation Commission has discretionary power to settle and com-
promise aetione and cauaes of action to recover penalties out of court, the
that ti' n,
h· b d e~ 0:
lr, ,where the dog in question was at method of settlemout set forth in seetion 956 not being exclusive.
dog nor;eis ~a~b~r~dIsa;cil~asmb the hTowJn °lf f!../ibort y, where the I am replying informally to your letter of February 10, 1949,
Y f een ar iorec 01' some months
OU re edr tMothe second subdivision of Section 109 df the Ag'l'I'- as the Attorney-General may officially advise only the officers
cuIture or
owning an h barkets
. .Law , W hiIC hprOVI
' d es that "every person
. of the State.
to the Clerkaorfortlhneg t dog sha~l make application for a license
a It appears to me that the use of the so-called sett1e:nen~ ~Y
own or CIty • • • •.in whiICl I dog IS . stipulation a copy of which was attached to your letter, IS within
harbored or kept." 1 t ie
the power~ conferred upon the Conservation Department by
St~~uD;ps~r;fe:5 tOreolPati~ionts
of ~he Att~rney General (1934) 51 Oonservation Law § 151, subdivision 13.
You have directed my attention to the language of Conser-
. , !. tlllsques1:lon.
mg 0
to ~~: :~~~~~go~~nd~s l~~ vation Law, § 164, defining the powers of certain officers, which
g the Attorney ,General of 1.934 relate
to Chapter 586 of the L' enses by the O.Ity of Buffalo pursuant section provides in part as follows:
the right to issue dog lic:~:esOfa~~3:, er
.":~Iclh
CtlI,1C Ygranted to that c~ty
"No officer above named shall compromise or settle any
vf Buffalo from the application of PA violation of this article out of court."
clae7o°fxem PtOAd t!le CIty
t J10 griculture
 118 INFORMAL OPINIONS OF THE A'rTORNEY-GENERAL
'I'he officers above named are the Superintendent of Law En-
forcement, Assistant Superintendent of Law Enforcement, Dis-
trict Game Protectors, Assistant District Game Protectors Game
Protectors, members of the State Police and Forest Ran'gers,
You may have overlooked the fact that the form under dis-
cussion is primarily intended to be used as an offer of settle-
ment by the alleged violator, followed by a form of recommendation
tha~ such offer, be accepted, to be signed successively by the
ASSIstant District Game Protector or the District Game Pro-
tector and the Superintendent of Law Enforcement. Such offer
of settlement, with the accompanying recommendations does not
become a compro~ise settlement unless and until it is' approved
by the Conservatior; Commissioner through his signing the ap-
pended form or order.
The provisions of Conservation Law § 956 are not exclusive
They provide an alternative method of settlement which may b~
~aken .advantage of by the violator who perhaps may not be
lll;lIr~edlately ab~e to make a cash settlement but who may be
W~111~g t~at a Judgment be entered against him to be satisfied
within thirty days thereafter. Such offer of compromise requires
theapproval as to the amount thereof of the justice and the
representative of the Conservatio.l1 Department, i.e., the District
Game Protect?r, re~ul~r or special Game Protector, member of
the State Police, District Forest Ranger or Forest Ranger, and
does not require the approval of the Conservation Commissioner.
1 am Informed by the Conservation Department that these
o~ers of. settlemel!t by stipulation are always made before the
vlOI~to~ involved IS a,rrested and arraigned before the court on
a. c!lmmal charge, while offers of settlement pursuant to the pro-
VISIOns of section 956 are generally made upon or after arraign-
ment.
. .However that ,may be, it does not appear that the Legislature
Intended t? require the Conservation Department, acting through
the , Oo~nu.sSl?n~r,t.o O?t~lll the approval of a court 01' justice
havIn,g J~ll'l~dIct:on In CIVIl actions, before it may "settle or com-
promise In Its dlscr~tion ~ny action or cause of action to recover
a penalty under this article (dealing with fish and game) as it
may be advantageous to the state".
February 21, 1949
MARSHALL E. LIVINGSTON, District Atto1'ney, Newa~k.
SOCIAL WELFARE LAW, SECTION
r AND "CLINIC".
469.2 GOVERNS USE OF TER'
"IS
"D
ISPENSARY
" plo~ee ~hall fail to "notify his employer before the day of electron
. ,You. wish to know whether" a group of four physicians special-
izmg l:t the treatmen~. of phychiatric disturbances" limited to
o~lt-patI~nts, may praetiee 011 such a basis in the form of a private
diagnostic and therapeutic clinic under the firm name f "th
' ", or "
. . . . . . . . Clime 1 '.. Institute", or "the 0
tIe...... e.
INFORMAL OPINIONS OF THE A'rTORNEY-GENERAL 119
Center". I understand this group of doctors do not intend to
serve hee or part-paid cases, but wish to handle patients who
can afford to pay regular physicians' fees.
'I'he Attorney-General is authorized by law to render legal aid
and advice 'to officers and heads of departments of the State
government only. However, I wish to call your attention to Sec-
tion 469.2 of -the Special Welfare Law which provides:
"* * *
No person, corporation, institution, society, association, 01'
agent thereof, except a duly licensed dispensary, the state
departments of health, mental hygiene, and education, or
an institution subject to their jurisdiction, a local depart-
ment of health or board of education, or a health officer,
shall display or cause to be displayed a sign or other thing
on which shall be written or printed the words dispensary,
or clinic or any other word, words or characters which could
directly or indirectly or by suggestion indicate the existence
of the equivalent in purpose or effect of a dispensary,"
I am sorry that I cannot be of more assistance to you in this
matter.
February 21, 1949
Mn,LARD & GREENE, New York.
ELEC'fION LAW, SEO'fION 200-TIME OFF TO VOTE-SPEOIAr, ELEC~ION-NoT1CE
OF INTENDED ABSENOE.
This section applies to a special election. , . .
Notice by the employee prior .to the day of election as to hIS intended
absence is a prerequisite to his l'I!5ht to the benefit of the statute.
I am replying informally to your letter of February 15, 1949, as
the Attorney-General may officially advise only the officers of the
Your first 'question as to whether employees qua lif
State. d t t
1 e . 0 vo e .ar
e
are' entitled to two hours off with pay, during a special electIOI!-'
is answered by the annexed copy of an informal opinion of this
office dated February 20, 1948, addressed to Robert A. Dreyer, 40
Wall Street, New York City. .,. . , h
In answer to your second ques~IOn, It IS ObVIOUS .from t e
Ian .ua e of the statute itself (Blection Law §200) that If the ~m­
f h intended absence" he is not entitled to the b.enefit of the
~ro~l~ions of the statute prohibiting deductIOn from hIS usual com-
pensation.
February 21, 1949
H. V. GOODERSON, Brooklyn.

120 INFORMAL OPINIONS OF 'r:flE ATTORNEy-GENERAL
UONSERVATION LAW, SEOTION 956-J"UDIOIARY LAW, SEC1'ION 5-JUSTICE'S
COURT Am', SEOTION 270.
A civil compromise of a conservation penalty may be entered into Oll
Sunday up to the point where it becomes necessary for the justice to ap-
prove it; such approval and the entry of judgment should then be post-
poned until tho following day. A civil compromise of a conservation penalty
may be entered into and completed on a holiday.
I am replying informally to your letter of February 22, 1949, as
the Attorney-General may officially advise only the officers of the
State.
Under Judiciary Lawf 5, COUltS may not be open or transact
any business on Sunday, except to receive a verdict or discharge
a jury, and in the case of a court of special sessions to receive a
plea or guilty and the pronouncement of sentence thereon ill any
case in which such court has jurisdiction, This rule does not pre-
vent, in a criminal case, the arrest, arraignment, commitment 01'
discharge or a person charged with an offense.
The provisions of Conservation Law § 956 relative to compromise
or civil penalty sometimes come into operation without any pre-
liminary arrest or arraignment, and in other cases they come into
operation after arrest and arraignment. They are in the nature of.
an offer to confess judgment in a sum which m.ust he approved as
to amount by the justice and the representative of the Conservation
Department.
'rhere appears to he no statutory objection to the making of such
an offer, or the approval thereof by the representative of the Con-
servation Department, on a Sunday. The approval by the Justice
appears to be a judicial set act which he may 110t perform on a
Sunday. . retired by your former employer WIll not of Itself clIsquahfy you for
The statement referred to in Conservation Law § H58, being
sworn to before and filed with the justice, "he shall forthwith enter
in his civil docket a record of the proceedings and the amount of
the judgment." Similar language is used in Justice's Court Act
§ 270, requiring the justice to "f01'thwith render judgment and
enter it on his. docket book." Nevertheless, it has been held that
where, in an action in Justice's Court, a verdict is rendered on
Sunday, judgment rendered thereon the following Monday is valid
(Allen v, Godfrey, 44 N. Y. 433) .
~h~re seems to be no reason why the preliminary steps to effect
a civil compromise may not be taken on a Sunday, up to and in-
eluding the filing of the st!ltement with the justice, who can
thereafter and on the following Monday complete the settlement
by approving the same, rendering judgment and making the neces-
sary entries in his civil docket. . sixteen years of age may not operate a motor vehicle In this State. Veh:cle
. As to the ~aki!1g of a civil compromise on a legal holiday-there
18110 legal objection thereto whatever, Courts may, and often do, sit
on legal holidays.
You further ask whether a justice of the peace may settle crlmi-
nal conservation cases on a .legal holiday or Sunday. You may
have used the word "criminal" inadvertantly. No criminal con-
servation ease is ever settled. It is either disposed of by trial and
INFORMAL OPINIONS OF THE AT'rORNEY-GENERAL 121
conviction, 01' dismissed for failure to prosecute or for lack or
sufficient evidence.
March 1, 1949
RALPH SCHRADER., Justice of the Peace, Glenwood.
UNEMPLOYMEN1' INSURANCE LAW-EJ,IGIBlLITY FOR BENEFITS OF PERSONS RE-
'J'lRED BY PRIVA1'E EMPJ.OYER.
The fact that a person otherwise eligibl~ for une?Iployment. insuran.ce
beneflts has been retired on reaching age 65, IS not of Itself sufficient to dis-
qualify him for beneflts, if he is genuinely in labor market, and ready, able
and willing to accept suitable employment.
'Phis will reply to your letter of February 25, 1949, requesting
my opinion whether you will be eligible to receiye u~employme~t
insurance benefits upon reaching age 65, at which time you WIll
be retired by the firm by whom you are no,:,emplo~ed.
'I'he fact that you arc retired by, and receive a retIrement all?w-
anee from a private employer (as distinguished from a retire-
ment allowance granted by the State of New Y?rk) is not, or itsel~,
sufficient to disqualify you for unemployment ll1sur~nce benefits If
you are otherwise eligible. If you have worked In employment
covered by the New York Unemployment ~nsurance ~aw, and have
aecumulated the required credits, you WIll be ent1~led to u~em­
ployment insurance benefits provided you are a~ ~he time genUI~e~y
in the labor market and are ready, able and wilting to accept SUIt-
able employment. Whether you are. in the labor marl~et and are
able ready and willing' to accept suitable employment IS usually a
que~tion of fact to be determi:r:ed by the circu?lstances surrounding
each case, but, as I have pomted. out, the. fact t?at y?u WIll be
In view or the fact that the Attorney-GeneraI 'IS un~u thori
benefits. orize
d
to render opinions or give advice to others than. the varIOUS State
officials, bureaus and department~, the rOreg?ll~g must be con~
sidered in the nature of an informal a~ld unofficial. reply to your
inquiry, given with a desire to be of aSSIstance to you.
March 4, 1949
C. A. McLARAN J Harrington Park, N. J.
VEUICLE AND TRAFFIC LAW, SEO'l'IONS 51(2) AND 20(1[b] )-MOTOR VEHICLE
OPERATORS' LICENSES-NoNRESIDEN'J'S UNDER EIGHTEEN YEARS OF AGE-
RIGHT 'fO DRIVE IN NEW YORK S'l'A'fm.
A nonresident over the age of sixteen but un~ere~ghteen who has beeu
issued an operator's license by another state granting l:cens~s to persons 0:v er
and Traffic Law Section 51(2) which grants recognition to p~rsons holding
operators' licen~es from other ~tates in which residents of this Stat~ JOY
reciprocity, is restricted to persons who have reached the age of elg een
ht
years,
Your letter of February 22 inquires whether a perso~ s~xteen
years of age who has been issued a motor vehicle operator s license
 122 INFORMAL OPINIONS OJ!' 'l'HEAT'l'ORNI'JY-GrmEItAL
by the State of Massachusetts may operate a motor vehicle upon
the highways of this State.
Section 51 subdivision 2, of the Vehicle and Trame Law pro-
vides for the'recognition by New York State of OIWl'll~Ol'S' lieellses
issued by other states whi.c~l g'l'~mt.N~lw York Stat~ residents simi,lar
reciprocity, That reeognition IS IlJlllte.d to a period Hot cXo(le~llllg
thirty days in any year. However, I point out tha~ such reeognltion
is restricted to nonresidents "of the age of mghtcen years or
upwards," Accordingly, a per~on under the ~Lge of eig;l,ltee~l years
may not operate a motor vehicle upon 1;11e highwaya of ~;\l1S State
unless he has received an appropriate license to do so from New
York State, (See Vehicle and 'I'raffle Law § 20, subd. l[b], pro-
viding for the issuance of junior operators' Iicenscs, under certain
conditions, to persons who have reached the age of sixteen.)
In view of the fact that the Attorney-Ceneral is not authorized
to give opinions to other than the heads of the departments and
agencies of the State government, acting' in their offlcial capacities,
the foregoing must be deemed to be entirely informal and unofficial,
given in the desire to be of assistance to yon in the consideratlon of
your problem.
March 4, 1949
FRED Z. PALMER, Justice of the Peace, Canaan.
EXECUTIVE LAW, ARTICI,E 13.
Persons employed as part time inatructcrs lit county (It'o trllining schools
during the time of such employmont arc state employees,
STA1.'E LAW, AR1.'ICLES 3 AND 4; GlmlmAT, MUNIOIPAI, LAW, SJ'Xl'l'ION209,
It seems paid volunteer firemen, if permitted by tho authorities in charge
of Federal installations ana buildings, may pruporly oxtiuguish flres theroin
and during such time are protected from injury or deatl; nuder State
statute.
'I'his will acknowledge receipt of your recent 10tt(\1' transmitting
certain queries addressed to you by ]'irc (JhioJ: Burry of Utica,
. In ~nswer, to his first question, it is my belie I' where P~l'~0.ns,
including paid 01' volunteer firemen are employed by the DIVISIon
of Safety of the State Executive Departmm;t as part time in.
structors at county fire training schools, that during such employ.
mel~t they are State employees and as such would. be protected
ag~lllst injury ?r death u~lder the Workmen's Compensation IJuw
while engaged 11l the performance of those duties. . ()hargl~ of a mortgage whicl: complies WIth the Pl'OVISlOllS of such
The Chief also inquires as to the protcetion afforded paid or
volunteer firemen answering "calls to Federal installations."
While the United States acquires title to lands in this State
und.er varying circumstances, i.e, by cession, purehase (State IJaw,
ArtlCles 3 and 4) . anc~ the pr~mse. deg'ree of (lCllltro) b.v the State
over such propertIes IS not alIke 11l all casos, I do not regard it
as I\ecessary to go into this matter in order to al'l'lve at my con-
cluslOn.
Where either a call is made by the federal omeln's in ('harge of
INI"OItMAT, OPINIONS Oli' TIm AT~'ORNEy-GENERAL 123
a federal reservation 01' installation 01' those officers do not exclude
paid or volunteer firemen from the reservation or installation in
attempting to extinguish a fire, then 1 believe that the firemen
lire jll'O(lwto(l \I11(\e1' the auplieable seetions of the General Mu-
nicipal IJUW and the Workmen 'H Compensation Law.
I do not, 0 r (IOUl'He, Kllggest that the officers in charge of some
particular fedel'ul rt'Kcl'vatioll (~r installation may not prope~ly
1'01' Kceurity or other reason which to them se~ms prOI!er, decline
to permit firemen to (Intel' upon the property of the United States.
I alii sure that you will point out to the Chief the l~mitation
upon the authority of the Attorney-General to fumish legal
opinionK 10, OfJi.PCl:S HlIcl. del~H1'tllllmts ?I' the State ,gov~rnmellt only.
']'11e foregolllg mlorma110111S nceessurily therefor Iumished through
you to hill,l.l!(Hmn.Ke or the Att:orl!ey.Gcncl'al'~ .desire to be helpfu~
to local olllC'IHIH 1lI matters relating to municipal government. It
is not 10 he considered a I'OJ'mal opinion of the Attorney-General.
March 7, l!J,Hl
'J'HOl\lAH W. HYAN, Director of Safoly, Albany,
RIMl.l'IWI'I'1t'I'Y Lxw, AN(!'I'lON :121.
A l'lwm'llil\~ 1I1ll(WI' shouldrecord (1lI, iUH,tl'umont pUl'pol'tiJ;.g to diseharge a.
JllUl't~Ilg'(', .if uekuowledged o~ proved in like mUJllI~l' to onbitle ,n,conveyance
1;0 110 I'I'l'.lIl'!lt!d, 1,\,('1\ f:h()u~h It tlocs 1I0t comply With the provisions of sub-
dlvlslun :1 of l:lol\!:ion :l21 of tho ROlLI Property Law hut the reeord of such
mOlotgllg'O should Hut In' marked "disellllrgo(l".
'l'hiK iK in 1'(~1l1y to YOUI' inquiry under date of March 1, 1949,
in which you refer to subdivision 2 (b) of § 321 of the Real
Property IJl1W in relation to a state of Iacts outlined by you.
Ytm state in effect that there has been presented. to, ~ou a
certificate 0 I' discharge of 11 mortgage executed by two individuals
who are not the mortgagee mentioned in the mortgage and who do
not appeal' to he uKl:lignoes of the lIl~ll'tlJ.'age, YO~l ~lso stat~ that
there ls nothing ill the discharge to indicate their l1lteres~ in the
mortgage. Yon inquire whether or not these persons can discharge
the mortgage evun though they do not appeal' o.n the record as
having' an interest ill the mortgage 01' as owners 01: the mortgage,
BuhdiviKionl of § :l21 or the Real Property Law, as addedby
ci. H7a of tho IJIlWK of Hl4H, in efl'eet Beptcmber 1, 19~8, authorl~es
a recording of'(k (H' , on presen tation to h.im or a cer~l~cate of dis-
subdivision, tolile and record the same and mar!,
th~ record of
the mortgugn "(lisdlIlI'ged." In such e!l~e the recording of~cer woul~
paBH upon the Huf(i('jmwy of the eertifleate to effect a discharge or
the mortgagor.. .
Subdivision 2 (b) of § 321 pl'ovide~ that a recordmg officer shall
recor(} every other inKtl'umcnt relatmg t(~ a mortgage, ac1mowl.
edged or In'ovrd in like InannCl' UH to .entltle ~.. eonveyance to be
reeorc1ed, ineludiuA' a eel'tificate purportmg' to ~hsch~rge a mortgage
01' all interest 1herein. In suell case the recordmg officer would not
 124 INFORMAl., OPINIONS OF ~'HE A'l'TORNIory-aI~NI!;RATJ
pass upon the sufficiency of the instrument to effect the purpose
intended by such instrument. . these revolvers are to be shipped by the Consulate to the Para-
It is my opinion that if the eertifica;te of purported discharge
of mortgage referred to in your letter IS acknowledged Or proved
in like manner to entitle a conveyance to be recorded, you should
record the instrument and, in accordance with the provisions of
subdivision 2 (b) of § 321, and after recording', you should enter
a minute 011 the record of the mortgage to which the instrument
relates, indicating the nature of the instrument and the hook and
page where the instrument is recorded 01' the serial Humber of such
record. You should not, however, mark the mortgage "discharged."
As you know, the Attorney-General is authorized to render
opinions to officers and departments of the state government only,
Accordingly, the views expressed in this letter are given informally
and are not to be considered an opinion of the Attorney-General,
but are given with the thought that they may be helpful in the
situation stated by you.
March 7, 1949
FltED S. MOORE, C01tnty Clerk, Watertown.
EI,ECTION LAW, SEC'I'ION 200-TIME OFF ~'O VO'l'E-Vrr,LAom Er,lI:C'!'lONS.
The provisions of this section are applicable to villnge elections. The
notice called for thereby may be given by the agent of the employee,
I am replying informally to your letter of March 1, 1949, as
the Attorney-General may officially advise only the officers oF.
the State.
Section 200 of the Election Law as originally enacted (L. 1896
c. 909, § 109) used the language "at' a general election", By
Chapter 32 of the Laws of 1918 the word "general" was taken
out. .It is therefore .appare!lt that ur:der its present language,
Election Law § 200 IS applicable to VIllage elections,
The voter may "notify his employer" either personally or
through a duly authorized agent, which agent might properly
be an officer or agent of a labor union of which the voter is a
member.
March 7, 1949
SEBASTIAN M. PAONI, Herkimer.
PENAL LAW, SEC'I'ION 1897-CONO~]AI,ED WEAI'ONR-POSSICSSION BY J!'ORIllGN
OONSUI,ATE-N~]CESSI~'Y OF LICENSE.
No license is neee~sRry f?r the Paraguayan Consulate to keep revolvers in
the Consulate pe!ldmg .slllpment to the Paraguayan Government ill the
course of the offleial duties of the Consulate.
I have your letter and enclosure of March 1, regarding the
:r;urchase by the Parag~ayan Government and retention in the
I araguayan Consulate ll1 New York City of fifty Smith and
INllOitMAIJ OPINION8 01<' 'rrm AT1'ORNEy-GENERAL 125
Wesson revolvers, You state that you have been informed that
guayan Government by air freight, five or six at a time.
Section 18H7 of the Penal Law requires a person having iii his
possession a pistol, revolver, 01' other firearm of a size which may
be concealed ~pon the person to procure a written license t~erefor,
as provided III that section. However, although no specific ex-
emption is provi:led for by that secti~n with respect to. r~pre­
sentatives of foreign governments, I believe that underprinciples
of. international comity no license would be required by the Para-
auayan Consulate to keep the revolvers in the Consulate tempo-
;arily, pending shipm.cnt to ~he. Paraguayan Governme~t, wh~re
such retention and shipment IS III the course or: the official duties
of the Consulate.
In view of the fact that the Attorney-General is not authorized
to render opinions to other than the heads 0:1' the departments
and arreneies of the State Government acting in their official ea-
paciti;''l, the foregoing must .be deemed to be. entirely informal and
unof'fieial, given in the desire to be of assistance to you m the
cOl1sideration 0:1' your problem.
March 21, 1949
WILLIAM P, O'BnIlCN, Police Commission01', New York.
ELEO'l'rON LA.w, SEO'l'IONS 40, 43, 46-ELEcTroN OIl'FIOl!lRS-SUl'PLYING VACAN-
()lES on AmUCNOIe,s OF INSPEOTORS OR OI,ERRS.
When a temporary appointment of an insp.ector is m~de. hacause of the
absence 0\. an inspeetor while the board of lllSpe?tors 1S m semen, such
appoiutment is made by the inspector present who 1S a member of the B~me
party us the absent inspector. If he determines that an unenrolled voter 1S ,R
member of tho snmo party andselocts him, it would seem that such person 1S
entitled to S(ll'VO throughout the day, .
I am replying informally to ~our lett~~ of March 11, 194~, as
the Attorney-General may officially advise only the officers of
the State.
Election Law § 46 (formerly § 45-a) provides generally fOl'
the termporary :fUlillg of. vacancies among the iJ?s:pectors on
registration days and election cIa:;,. A person ~o appomted must
be "a member of the same party as the official whose place he
is to temporarily occupy. "
The quoted language had ~ts origin in section ~~ of the Elee-
tion Law of 18H6, at which tune the present provisions for party
enrollment did not exist. Prior t? 1~09, parties were v.oluntary,
associations and the party orgamzation was the .sole. Judge of
the qualifications of its own members and of their l:x ght t? be
recommended for appointment as inspectors of elections either
permanently 01' temporarily. , , '
When provision was first. made hy ~hapter 22 .of the Laws of
1909 for party enrollment, It was specifically provided by sections
11 and 12 tl{at each party committeeman must be "an- enrolled
 126 INI~ORUAL OPINIONS Oli' ~1'Im A'l"J'ORNI<iy-OImmtAL
voter of the paity." Election inspectors and clerks, however as
far back as 1896, have only been required to he "membors of ;nch
party" (§§ 40, 43, and 46), In connection with regular appoint.
merits, the proper party officials certify the list of pcnWllS from
which appointments must be made.
'I'he Legislature has for over forty yem's failed to SI)ocifieally
require inspectors and elerks to ~)e ~lll'()lle(l :llClnhcrs of 11 party,
and as recently as Murch nth of this year, 111 the enactment of
Chapter 100 of: the Laws of: ID4fl, revising the :Klcetion Law
generally, continued the present language or the statute relative
, to the appointee being "a member ol' such party."
In, the case of a temporary appointment, the "inspector present
who IS a :nemher oJ'i;he same paJ:ly us the absent inspeetor" makes.
the appointment. 1:1 he determines that an unenrollod voter is'
a member of: ,the s~une party and selects him, it would seem that
such person IS entitled to serve throughout the (lay,
March 21, 1949
WILLIAM H. SMr:t'H, Ohairman BO(l1'rl of Electunis, Rehllr1erville.
REAL PROPElVJ'Y LAW, SI'~C'l'ION 321, SrTBlJIVISlON n,
A cllrtifi.eat:e oj' dlseharge of mortgage RllOuhl HOt. 1'1lr!,ol'l', to diHehal'g.e
more than one 1l101'tgllge, '
. 'rhi~ is in r~p1y.t? your in(]:liry under date or 1\1111'('1118, l!.l49,
111 which y?U l;eJer to § 32.1. of the Heal Property TJIlw in relation
to ~ts application to a state of faets outlined hy you,
10u state that there has been presented to yon a (lisdllll'ge of:
mortgage which ,pur{)Qrts to discharge two diffoJ'Cl~" mortgages:
You also state, III effect, that an agreement consolidating these
two, mortgages was, recorded in, YO~ll' office March ia, .l!l-ifl, hut
that. no mentIO!1 of such consohdatlOn agreement is made in the
. certificate of discharge.
You inquire if: it, is proper .for ron to aeecpt tho difwharg'e of:
the two mortgages 111 one certificate. . choosing, and whether the- apPoI~tlllg officer III serving such em-
SubdivisiOl~ 3 of, § 321 sets forth that no rGl'tifir'/tle presented
to the recording officer shall purport to discharge more than JUG
mortgage.
, On the, ques~i()n o:f: the intent of this aubdivlsion, T have taken
into COI!SIderatIOn the statement regarding the same ill the re(',0111-
~nendatlOn of. the Law Revision OommiHsion to tho Lcrdslatl1l'o '
.L?r the adoption of the amendment to§ 321 whieh became effec-
tive September 1, 1948. ". , ,. , ...
The Oommis~ion stated: "A number of recording OffieC1'H have
~ep~rte~ that l~ ,has beco;me 11 common practice for person« and
institutions desiring to discharge several mortgan'cH of record 011
t~lC same da;y to illcl:lde more than 011e mortgug'e'"i;l 11 Hil~~l~ cer-
tIfic~te;, TIns practice produces delays and confusion in the
recoI~lllg ,o,ffice, and sometrmes resultH in inadvertent fuilme to
note the chscharge of: one or more of: the mortgages on the record
IN1"OHiYIAL OPINIONS 01" 'rIm AT'l'OHNEY-GENERAL 127
book. 'I'he 'statute should therefore provide that no certificate
presented to the recording officer shall purport to discharge more
than one mortgage."
The intent of the aforementioned provision of subdivision 3
being as above expressed, it would therefore appear that you are
not required to accept the certificate of discharge referred to
by you for filing and recording.
As you know, the Attorney-General is authorized to render
opinions to officers and departments of the State government
only, Accordingly, the views expressed in this letter are given
informally and are not to be considered an opinion of the At-
tomey-General hut are given with the thought that they may be
helpful to you in the situation outlined by you,
March 28, 1949
WIlLIAM R. Mnxn, Connt'!! Clerk, Canton.
ClV!!, SEltVlOE ]~AW, SI~()'l'ION 22 (l)-RlGIIT ali' EMPLOYEE TO DE REPRESENTED
BY COUNAl~I,.
An employee who is subject to removal only upon charges and aft~r a
lUlUl'ing uJl(ler,mvll Servico LllW, Sce:tion ~2 (1), sh?uld ?e.zaccorded the. r~ght
to ropl'esolltatlOll by ecunael. Bueh l'lght IS to l'epl'eSen~lItlOn by an.attorney
at luw ouly aud not by 11 lily person. The employee might well be informed
when served with notice of hearing that he may be so l'eJ?l'e~ented thereat,
111though tho l'cquil'Olllm~t that an ac~u~ed ~e informed of. Ins l'lght. ~o counsel
is OIlO speeiflmtlly provided by ConstItutIOn and statute upon arrest OIl a
erlmlnnl euurgo only,
You letter received March 12, 1949 requests my views as, to
whether the right of an employee of you~' ~lepartr:tent to a hear~ng'
in removal. proceedings, pursuant to qlVII SerVICe Law, Section
22, subdivision 1, entitles him as of right t~ be represented by
counsel at such hearing. You :f:urther lllql1l1'e, whether, 1£ the
answer to your flrst question is in the afflrmative, counsel m~t
be an attorney at law or may be. a~y lay pers?n of t~e employee s
ployee with clue notice of hearing upon ~tated charges sho~ld
also inform him of his right to representatIOn by counsel at the
hearing. , '1 S\ . L
I consider that, at a hearing pursuent to OlVI " er:I.ce. a;v,
Section 22(1), an employee should be accorded the nght to repre-
sentation by counsel, , . . .
It is true that subdivision 1 of SectIOn 22 of the CIVIl. SerVIce
Law does not specifically provide tha~, the empl~yee may ?e
represented at the hearing by counsel .If he so desires, As ~lS­
tinguished from such omission, s.ubc11VISIO n 3 of: the sa:t;Je sectlon~
providing for appeals and hearmg thereon, does speCl~cally de
clare .th~t "The person 01' persons holding such hearing ~ * oj«
shall upon the request of such officer or employee pe~m1t hnn. to
be represented by counsc1 lJ1c 01« lJIc:': Subdivision 3. came lllt? SectlO~
22 in 1041, whereas the prOVISIon :Eor a hearl11g now 111 SUbel1
 128 INI<'ORMAT-J OPINIONS 01<' 'ritE A'P'I'OIlNI,;Y-UENJo:HAIJ
vision 1 of that section is a very old one ill the Civil Servieo Law.
. However, notwithstanding' the seeming' absence of requirement
that the employee be permitte~ ~o be represe~lLed by counsel by
reason of the omission of provision therefor 111 the statuto, it is
my belief that, upon principle, he is not to be denied that right.
As I read the cases where the question has been considered, if
not squarely raised, under tho forerunner of Civil Service Law
Section 22(1) and otherwise, they indicate that the right to ap~
pear by counsel is one of the elements of the protection to be
extended to an employee in the classified civil service who is
subject to removal only upon charges and after a hearing' (People
ex rei: Long v. Whitney, 143 App, Div. 17, 20; People ex rel.
The Mayor v, Nichols, 79 N. Y. 582, 588; PeOl)lc e:l; 1-eZ. Ellett Y.
Flood, 64 App, Div, 209, 211; People ex rel, Sm.ilh v. Phiste1'el'
6~ App, Div, 52, 53! People exrel, O'Neill v, lUl1phmn, 132 App:
DIV. 667, 669, 673; People ex 1·el. Bmdy v. O'Bl'w/I, !l A.PI>. Div,
428, 430; People ex rel. McDonald v. Keeler, 99 N. Y. 4m3, 484-5).
Answering your second question, I regard tho right to counsel
as permitting representation by an attorney at law only and not
by a Jay person.
Answering yOUI' third question, I would say that, while the
requirement that an accused be informed of his rig'ht to counsel
IS one specifically provided b3T Constitution and statute upon
arrest on a criminal charge only (New York Constitution, Art.
I, § 6; Code of Criminal Procedure § 188), it appears to mo
that to carry out the spirit of the principle of according tho right
to cou~sel at hearings here under discussion, and to avoid delays
by adjournment 111 order that the employee may provide himself
w~th counsel, the employee might well be informed when served
WIth notice of the hearing that he may be So represented thereat,
March 28, 1949
DEPAM'MENT OF MENTAT-J HYGIENE.
INI"OHM At. (h'INlONS 01" 'rIm A'r1'ORNBy-GlDNERAL 129
tween the Statp and the Federal Government,. under which the
latter will reimburse the State for 75 per cent of the 'cost of opera-
tion of Camp Smith at Peekskill, New York, as a year-round
National Guard training site to be conducted b;y the Sta~e. The
question raised eoneerns the ~~e~t upor: the ~etIrem~nt rights of
civilian employees of YOl:lI' DIVISIon ~f l11cludI~g their compensa-
tion in tho personal service costs subject to reimbursement under
the eontraet,
It is assumed from your letter that these ~mployees are to be
compensated by the Stat.e out of State funds m the l1s~al m~nner
and that the administration and control of Camp Smith wllf be
wholly under t:ho clire('tio~l of th~ State, Upon these ass?mptIo:r;J.s,
the employees involved WIll remain St.ate employees subject ~o all
the provisions of State law, and their retirement status, rights,
benefits and obligations will he in no way affected by a~ argeement
nder which tho Federal Government undertakes to reimburse the
u ' . .. th
State for the (lost to it of maintaining '. e camp. "
It is to he specifically observed that the. scope of YOl;~r I~gUlry
docs not include the retirement status ?r l'l~~ts of any 111dlVldu~
employee or class of employees, and this opmion ~oes not purport
to pass UPOll any sueh question, nor was any 0~I11l0n r~q~est~d or
given herein on the particular costs ~r method ?f computatlOIl; there
of which should he made the subject of reimbursement m the
proposed "Service Contrnct."
March 28, 194D
An.TU'fAN'r Gl';NlmAIJ, Alb HUy.
, T·, ItmVIEW 0]' MA'f'I'EltS REIJATING ~'O VIL-
Vn,I,AIU: LAW, HI'~(:~l'lON f).l,n-" Ul1lCIA1' S EO'",I~NS 150 330 E'f' SEQ.-QUALIFIOA-
IIA(H~ Ji}LI'~O'l'IoNR-l~rll~c'rIoN1
: ,'"AW, ..... , , ,
'1'101'1' (1]' VO'l'JO:HH--rllTMMAltY .JmmlDlO'froN. , .
. A voter mny not eluim a residence for voting purposes which IS solely a
plneo oC JIIIHbH'8H whore lie habitually reaides at another place.

r am replying informally t;o.your let:er of March 25, 194 ,t~:

RE~<IREMENT RIGHTS OF OIVILIAN EMPLOYEES OF DIVlSION 0" Mn,ITARY AND the Attorney-General may offleially advise only the officers 0 E
NAVAr, AFFAIRS-EFFEC'1' OF INOLUDING TImm COMPI':NSN.l'rON IN COSTS
SUBJECT TO PARTIAL REIMBURSEMEN~' BY ]'BDBRAL OOVmtNlImN'I' P'OH MAIN- State. , . . .. t t0 l ay d own any hard and
~'BNANOE OF NA~'IONAL GUARD TRAINING CAMP, It is manifestly impossible to attemp
, . .• ,. . r, 1 t ,t select among two or more
The retirement s~!1;t~s and ril{hts under applicable Stato law of civilian fast rule as to the power 0:( an ~ ee 01. .0 .' t one from
employees of the Division of MilItary and Naval A:lrairs will not bo affected places elamcd hy him to constItute hIS residenees, :ha ti .
by 11; con~ract under which their compensation is ineludod ill the basis for whi~h he may vote. 'rhe final determination of ~ IS. ques Ion IS
pa~tlal.l'~lmbul'sem~nt to the State by the Pedernl governnwlIt of' tho cost of
mamtalning It National Guard trnining camp uuclor Stato rlirectlon and controlled by the facts. un.d cireumstances ~n .eack ~nd~~~d~~;r~fs:£
control. . Primarily the question IS one to be determme . y . b
. ( a» '. l' t . t i 1 c1 subject to review Y
'I'his is in r:eply to y~UI' letter of ¥ar~h 25 requesting an opinion inspectors in the partICul~Ll: c IS r~cV:lnlv~ v~
the courts under the provisrons of I abe a
'w
§ 53-a and Election
upon a question ::ased 111 a commUlllcatlOll to you, dated March. 23,
1949, by the Chief of Staff for the OOlumanding General of the IJl1w Article 14. '. thoritv n the question submitted
New York NatlOnal Guard, You have not made available to me the 'll!le most closely.appl1cable an 011 Yo °the otherwise rmreported
hy you, that 1 halve.l~eTl ~lb~I~~t:~~f Brick (Marchiselli; Suozzi)
s
proposed "Service Oontract" which precipitates tho question. It is
stated, however, that this is an agreement to be ontel'ed into be- ~leClSlOn of Green )CI~, :1" IAn rr t r:: 1946 issue of The New York
found at page 208 of tIe . uous D,

130 INFORMAL OPINIONS. Ole 'l'IIE ATTORNI<;y-ChmJontAIJ
Law Journal ~nder the heading of Decisions, Supreme Court, Bronx:
Ooun~y, Bpeeial 'I'erm, Part 1.
ThIS was a. proceeding to strike the names of the respondents
from the register of voters.
Resp~ndent Marchi~en~ was registered f'rom l~n address in the
Eleventh Assembly District of the Bronx, at which he maintained
a fyneral parlor. The pren:ises contained several rooms, amon
which was one where he clalll1;ed to have slept on several days ~
w:eek, to .have. eat~n on occasion, and on Sundays to have had
dinner WIth hIS WIfe; I~e al~o had a home at another address ill
a~other Assembly DIstrICt. 0:[ the Bron::, w~171'e he lived with his
WIfe and son, and from WhICh address Ius wif'e voted.
The Court said, in part, that the residence claimed at the
funeral parlor,
"was ~dopted for the specia~ purpose of permitting' TvInJ'chiseUi
to register, enroll and ~ote III ~he Eleve~lth ~ssembly District
of Bronx County, * * I« * It IS recognized III the law that It
person may have one or more homes or residences and that in
~~ch a c~se the person may s~lect the home or the residence
from which he WIshes to iregister, enroll und vote provided
they are both bona fid~ residences, What if': a bona fide resi-
den~e. mus,t be c~eterl.nllled from the (~irelUllf':tlUW(~S, by the
!eahtI?S 0;[ the sItU!ltlOn and hJr fuctors which t.l'l111f':late the
~ntel~tl~n into meamng. r~'he deduration oj' intention alone is
msu,fficlent. It must be gwen substance by the lwLf': and con-
duct of t~le person. There must be evidence outside of mere
~r~sen~e in the p!ace from which the I)(n'f':~Hl uttmpts to regis-
t~l, to show ,that 1\ has, been adopted as his horne. Iiesidence,
Vlh:cl: .Ul~dCI the EleetlO~t. flaw, IS svnonyiuuus with domicile,
h.a~ ,re:l'elellt;e ,to .~1. speeifle ab?dc at a pmtieulur place and
, signifies an intention to reside 11l such place."
-} !he eVlde~lCe as. to the registration of the othi.11' respondent in
t ~lS prhoceedmg showed a st~te of facts different I't'oUl the evidence
as to t e respondent Marehiselli.
l ~sl t? both respondents, the COll1'1 said ro l'el'l'iJlO' 10 the test
IV ne 1 IS set forth above: ,,,,. , "
. "~'his test the l'espolHl~nts have not mot, (In tho contrary,
~t ].rclS been a~llply cstahlishod that they did 110t givn up the
~rld~nc~~ wh~~l~. ~l.l~y 0r~cupiod witl.l th.eh' :l'alllilies in favor of
tl~:t aces 0~.1.eg:s.t1Y: . :[hell'. behll:"lOl'. Jl,lst1fios. this conclusion,
, l' cond;l~t 1'01 titles It, ~hClr aetion IS meunsistent; with their
11esent .cl'lJ,l~ i:O ne:v reslden~eR (see Matter of Rooney, 172
n PP . I?lV, 2 '4, Matter 0:[ Hirsehhorn v, 1\ hearn <):W App
r ~v, 533) Poo};le" &e.,v. Cady, 14:l N, v. 1 00; lVllll/m:-'of no()d~
nan 146 o-N. ('~('
19'35
y.., 284; J n 1'0 Hamil N Y I J L' \ . I ,t:
fI':['" , . .. 1.'" ':lCptOlll )01 n,
N'Y .a:
LPa"'r e J;) J, c . 268 N, Y., lllel,; Mlltl(\l' of Weinfeld
. . .,., July .30, 1D42, p. 2:l3).
April 5, 1949
,JOHN N. I~lImLIm, ,VaIden.
131
ELIW'l'ION IJhW, HI':O']'lON :Ifil-GAINING OR LOSING A RESIDENCE. •
While luloptioll hJ' u resident of this State of (\, temporary abode in a
foreign Statu for the solo purpoae of federal employment does not neces-
Sllrily eoustltute un nbundonmout of his residence in this State, his voting in
10ciLI olectiolls would hil It stl'ong indication of such abandonment.
I am replying' informally to your letter of March 30th, as the
.Attorney-Clencra'l may officially advise only the officers 0:[ the State.
Election Law § 151 provides, "For the purpose of registering
and voting 110 person shall be deemed to have >II' >II' lost a residence
by reason or his >110 >110 absence while employed in the service of the
United 8tllteH >110 >110 *." Under this statute you would not lose such
right to vote in New York as you may have had at the time of your
appointment in federal service solely because of your absence for
that reason. If yon actually establishecl a new home in Maryland,
so as to constitute an abandonment of your New York domicile,
your voting rights in New York would be lost. The question is
whether your new residence is a temporary abode for the sole
purpose of your federal employment or has been established as a
new permanent homo for all purposes.
I am not familial' with the Maryland, laws governing the local
elections in which yon voted in that State. If these required that
you be domiciled there and did not merely require that you be the
owner of property 01' some other qualification short or domicile it
would be a strong indication of abanclonment of your New York
residence that you assumed to vote elsewhere.
April 7, 1949
SAM SOIIwn.um, Greenbelt" Maryland.
CoNSmWA'l'ION IJAW, SICC'l'lON 191, SUDD. 2-EL1:MINA'.l'ION OF BEAVER DAMS ON
l'RIVA'.l'E LANDS.
One whose usable land is damaged by the eonstruction of a beaver dam
thereon, may with tho permission of the Conservation Department destroy
the dam and remove or destroy the beaver. Where there is liability of Immi-
gration of beaver from tho land of another above him, his remedy is against
that other (see 1922 Atty. Gen. 159) .
I am replying informally to your letter of April 20, 1949, as the
Attorney-General may officially advise only the officers or the State.
Under Conservation Law § 191, subd. 2) "No person shall dis-
turb a beaver dam >II< 01« "" at any time, except as permitted by the
department." .
Your remedy as to the beaver dam on your ow~ property IS to
apply to the Oonservation Department for a permit to destroy the
dam in question. If the Department, in its discretion, determines
that the beaver should be destroyed, or removed, in or~er to pr.e-
vent a rebuilding of the dam, they hav? th~ pow.er to include 111
,
their permit authority to accomplish this, either 111 or out of the
legal season for trapping beaver. . .
As to the recurrent invasion of your property by the ImmIgra-
tion of beaver from the property of others above you on the stream,
132
you .should consult private counsel, calling' his attention to the
opmion of Attorney General Newton, dated Bcptemher G 192?
.(1922 .Atty. Gen. 159), and the decision of the Court of AIlpeal;
111 Barrett v. State, 220 N. Y. 423.
May 2,1949
MAWl'IN MCOAR'l'Y, Cambridge.
MEMBERSHIP CORPORNrWNS LAW, SE(J'J~roN 2i; l'ERSONAe, l'ROl'lm'I'Y T,.nl·, Sl<:C.
TION 21; DI~OEDENT ES~I.'ATE LAW, SEO'I'ION .lll-···lNVJ':H'I'MI'lN'I' (lJo' PONDS OF
A OHARI'l'ABI,E MEMBERSHIP COltPOItA'I'ION,
~h,othor 11 partieula» fund was bcqul!l~thol1 to a corporntlun wlthou] 1'0'
strietiona as to investment, 01' whether given to the enrporntlon 01' a trus~
COmI!ILllY so as to constitute the holder a trustee within tile IllelLuing' of
Scetion 21 o,f the Personnl Property Law or Seetiou 111 of tile Deeedent
Estate Law IS, in a doubtful case, a question for the Court.
Replying to your inquiry of April 18, lD4D l'nlating to the
~owers of The Ameriean Association to ~)rolllote the 'I'eaehing of
Speech to the Deaf, a New York corporation, to invest its funds ill
shares of stock of other corporations, I regret that I must advise
you that the Attorney-General is authorized to render opinions to
the departments and officers of the State Government only.
Info~mally and unofficially, however, I may call your 'attention
1:0 Section 27 of the Membership Corporations Law, ItH added by the
Laws of 1945, Chapter 710, which provides that: . Section 21 of the Personal Property Law and Section 111 of the
.,"Subj~~t to the limitations and eondltiona eontaincd in any
gift, devise or bequest, a membership corporation, created by
. or under a general 01' special law, may invest its funds in.
such mortgages, bonds, debentures, shares of: preferred mid
com,rrlOn stock and other seeurities as its directork shall deem
advisable."
T~e statutes governing the investment of trustee funds are
Seetion 21 of the Personal Property Law and Secti()n III of the
Dece~ellt Estate Law. 'l'!h~se. statutes are too l~ng to quote, but in
general confine a trustee s investments to It Iist of "leauls."
Whether the .A. M. Bell Memorial Fund was given devised 01'
bequea~hed to the corporation without limitatioml <;>1' ~ondition~ as
:0 the mvest?Ientof the fund' or whether the fund was given to
the c?rporatlOn or a trust company in tl'ust to invest so as to.
eonstrtuts the holder a trustee within the meaning of Section 21 of
the Personal Property Law and Section 111 of tho Decedent Bstate
La:v I~ III an~ doubtful case commonly a question fot' the court to
adjudicate,
The foregoing discussion is not to be considered the opinion or
t~e .At.torney~General, but merely the personal view of the writer
gwen III the hope of being of some assistance to you,
May 17,1949
.AMERICAN SECURI'rY & TRUST OOM!.':ANY, Washington, D, C.
IN1"OHMAIJ OPINIONS {)Ii' 'UtE A'l"l'ORNEY·GENERAL 133
MEMnJ!mslUP CORl'OItA'I'IONH IJAW! SEC'I'lON 27; l~ERSONAL PROPERTY LAW, SEO-
'l'ION 21; llJo:cl,:m:wI' l']8'I'A'l'I'] LAW, SIi:e'I'ION l11-INVESTMEN'r OE' ]'UNDS OF
A OIIAIWI'ABI,Jo: MJ':MIlEIlSIIIl' C()ltl'OItNl'ION•
Whether a pnrtleulur IUlIll wus bequeathed to a corporation without re-
strictions as to invllstU!(mt, 01' whether given to the corporation or a trust
eouipnny so as to COlllltl tuto the holder a tmstee within the meaning of Sec-
tion 21 of tho Poraunn.lL'ropeity Law or Section III of the Decedent Estate
Law is, ill a duubtf'ul case, a question for the court.
Replying to your inquiry of April 8, 1949 relating to the powers
or a hospital organized under the laws of this State to invest a
legacy in nonlegals, 1 regret that I must advise you that the
Attorney-General is authorized to render opinions to the depart-
ments and officers of the State Government only.
In:l'ormally and uncllleially, however, I may call your attention
to Section 27 of the Membership Corporations Law; as added by the
Laws of 1D4G, Chapter 710, which provides that:
"Hubjul't to the limitations and conditions contained in any
gift, devise or bequest, a membership corporation, created by
01' under a general or special law, may invest its funds in
such mortgages, bonds, debentures, shares of preferred and
common stock and other seeurities as its directors shall deem
advisable."
Whether the testator imposed any condition or limitation on
the investment 01: the fund or whether the fund was given in trust
so as to constitute the holder a trustee within the meaning or
Decedent Estate Law is, in any doubtful case, commonly a question
1'01' the court to adjudicate.
The foregoing diseussion is not to be eonsidered the opinion of
the ,AttOl'11(ly-Gcllcra], but merely the personal view of the writer
given in the hope of' being of some assistance to you.
May 17, Hl"lD
BENJAMIN A, IIAWrR'rl':JN, New York,
I~XEourI'IVE LAW, SI~(J'I'IONS 102, 106·a·-No'rARlES PUDLIO AND COMMISSIONERS
all' DEEDH·-,·Au'I'IIEN'.rlOA'l'ION OE' SIGNA~'URE DY COUNTY CLERK-SPECIFIC
PRODI,EMS DIBCUHHED.
A county clerk may llOW c,ertify the signature of a notary J,>Ublic app~ar·
ing on a document dated prror to March 26, 1947 (the effeetrve ?ate of L.
11)47, e. 417, relntlng to notarles public), and having its venue III l1;nothe~
county, whore the notary's cortificate of offiCIal eharacter was on file 1ll that
county clerk'a office at the time the document was executed. A county clerk
may corti:fy tho signature of !I notary public 01' com?lll~SlOner of deeds on
an instmmout executed a£tor that notary 01' comllllSSlOuor had been ap-
pointed and hall j110d his commission with s,ome other county clerl~, but
beforll n C{)I'ti/](\a1:11 of the official character of su~h notary, o~ a eertifieatc
of appointment of such eommissionel', was flled III tha,t partIcular. county
clerk's offiCI) provided tlUtt sueh certificate of authority or apPol;ntment
shows thnt tile notary or commissioner was authorized to net at the time tho
instrument in question was executed .
Your letter of April 25 requests my advice regarding authenti-
 134 INFORMAL OPINIONS OF TI-IE ATTORNEy-GENlmAL
cation by you of the signatures of notaries public and commissioners
of deeds in certain instances.
Your first inquiry is whether you may now certify the signature
of a notary public appearing upon a document dated prior to
March 26, 1947 (the effective date of the 1947 amendments re-
lating to notaries public), and having its venue in another county
where that notary's certificate of official character was on file i~
your office at the time the document was executed, Your other
question is whether you may certify the signature of a notary
public or commissioner of deeds on an instrument executed after
that notary or commissioner had been appointed and had flled his
commission with some other county clerk, but before a certificate
of the official character of such notary, 01' certificate of appointment
of such commissioner, was filed in your office.
I believe it would be proper for you to certify tho signatures of
such notaries public and commissioners 0:1' deeds in these situations
as long as the requirements discussed below have been met.
. 1. Prior to the 1947 amendments to the provisions of' the Execu-
tive Law relating to notaries pub lie (L. 1947, c. 417, effective
Marc~ 26, :1.947), a county clerk was authorized to authenticate
t~e SIgnature of a I!0tary public. who had filed his autograph
SIgnature and a certificate of offcial character with that county
cfe~k. However, such cOl~nty clerk's authority was speei:fically
limited by former Executive Law § 102 to those instances where
the notarization took place in that particular county. 'I'hus, prior
to March 26, 1947, YO~l had no authority to authenticate the signa-
ture, of a notary public on a document executed in another county.
However, the .1947 amendments w~i~h, among other things, gave
notaries public ~tate-wide . jurisdiction, also authorized county
clerks to authenticate the SIgnatures of notaries public who had
filed the necessary papers, with them, and Executive Law § 102
was a~ended to specifically. cover notarizations performed any-
where ~n the State. Accordingly, under present Executive Law
§ 102, It IS. propel' for you to authenticate the signature of a
notaI7 publI~ who has filed the required certificates with you,
notwithstanding the fact that at the time the notarization was per-
formed, only the coun~y clerk of the county wherein that trans-
action occurred ~ould Issue such an authentication.
2. M! VIews WIth r~spect to yo:ur. second question depend upon
the ~olm of the eertifleata of official character or certificate of
appointment filed in your office by the" notary public Or com.
mISSIOner of deeds. An authentication by you of the signature of
a notary public pursuant to Executive Law § 102, or the signature
of ~ eommissionsr of deeds pursuant to Executive Law § 106-a
certlfi~s,"among other things, that at the time the notary o~
commlss;,oner took th~ proof, aclmowledgment or oath in question,
he >yas duly authoI:Ized to take the same." In order for you to
certify to t~e authority of a notary or commissioner whose certifl-
~ate of official character or certificate of appointment was not filed
in your office :xntil SOme time subsequent to the date when the instru-
ment in question was executed, there must be some official record on
INli'OltMAIJ Ol'INIONS OJ!' 'l'lIlD A~r~'ORNEy-GENERAL 135
DIe in your office establishing the fact that the notary or commis-
sioner was authorized as such at the time he exercised his official
function. 'I'horefore, if the certificate of official character or certifi-
cate of appointment filed in your officeby the notary or commissioner
shows that; such notary or commissioner was authorized to act at
the time in question, you may authenticate that notary's or com-
missioner's signature all tho previously executed document, not-
withs'tanding the :l'aet that the certificate 0:[ official character or
certificate 01: appointment was not filed with you until some sub-
sequent date. _., .
Inasmuch as the Attol'l1ey-Oeneralls authorized to render formal
opinions to state. offic?r~ only, the for~g~ing discussion must be
deemed to be entirely informal and unofficial,
May 18, 1949
ARCHIllAlJD H. WA'l'SON, OO7.tnty Clerle, New York
\,
'
ELEC~\lON LAW, SEc'rION 152-CIvn, SERVICE LAW, SEc'rIoN 14-PENAL LAW,
SIuc'rlONS 2380-2383-00DE OF CRIMINAL PROoEDURE, SECTIONS 814-826-
DISHONORAIlLE DISCl1ARGE FRO~{ ARMED FORCES, EFFECT OF, UPON RIGHT
OF SUFFltAGE AND O~'HER MISCELI,ANEOUS OIVIL RIG:ElTS.
As the Attorney-General may officially advise only the officers of
the State, I am replying informally to your letter of May 16,1949,
presenting various questions as to the effect of "bad conduct" or
"dishonorable" discharges on Civil rights. . . .
As to that part of your inquiry relating' to the effect of a. ~IS­
honorable discharge on the right of sl1ffrag~ and to hold a pOSItIOn
in State or municipal employment, I herewith enclose a copy of. an
informal opinion of this office dated May 11, 1948, addressed. to
the Westchester Civil Service Institute, Yonkers, N. Y., which
appears to be pertinent. . '
Inasmuch as Federal law governs national. citizenship, ~ do not
undertake to advise you as to the effect of a dIshonorable discharge
~@~~~. '. .
.As to your question in regard to the effect. of a dishonorable
discharge upon the right to ~ol~ real. property III New York Stat~,
I wish to advise you that this I'lght IS not affected by the own~r s
conviction of any offense whatever save that of treason against
the State (See Penal Law § § 2380.2383) andonly then when a
judgment of outlawry is rendered against him (See Code of
Criminal Proeedure § § 814-826). . . .
A person's right to travel freely about this State IS not curtailed
by the fact that he has a dishonorable diseharge., . .
I am unable to give you any information 0,1'. opinion relative to
the attitude OJ: private employers as to the hiring of persons who
have received a dishonorable dIscharge.
May 20, 1949
OOLONEL JOHN S. ROOSMA, Provost Marshal, New York.
 136 INFORMAL OPINIONS Qli' 'rilE i\.'l"l'OHNl,;y-(lI':N.l']ItAIJ
l!JXECUTIVE LAW, SEC~'IONS 101, 102, 103; GENERAL CONS't', LAW, SlW'l'ION 11'
PENAL LAW, SEc'rION 440-NOTARIES PUBLIC-AOImOW],ImGMlGN~'OJ!' erm:
TIFICATE OJ!' Donw BusrNESS UNDER ASSUMED NAlIm-Au'l'lmN'l'ICA'l'ION
OF NO~'ARY'S SlGNA'l'URE WHERE CERTH'ICATE TO BE Jt'1I.lm IN OOUN'l'Y
W:S:ERE HE HAS NEITHER QUALIFIED NOR lPILED Cmt'l'U'WA'l'JiJ 01" O~'~'IOIAL
OHARAOTER,
~n authenticating certifleute is required to entitle a lIol'tilicato of doing
buslJ;ess under all as~umed name to bo filed ill a County where the notar
pUb!lC before whom It was acknowledged has neither quuliflud nor flled ~
certlficate of official character.
'F~is is in reply to your letter of April G, wherein you request an
op,lllIOn as t~ whether a ~ounty ,Clerk is required to accept for
filing a certificate of doing business under an nssumed name
pursuant to P~nal Lew Secti0I!- 440, where such certificate has beel{
acknowledged III th~ Btate before a notary public who has neither
guahfied nor filed hIS SIgnature and eertifieate of offleial ehauaetsr
1U the .office of the County Clerk to whom the eertifieate is offered
fOffir fidhn g, and no County Clerk's eertiflcate 01' nuthentieution is
a xe .
" Penal Law Section 440 requires that each eOl't.ific'Hte thereunder
,shall be executed and duly acknowledged" and that it. be filed in
. the office ,.of the Clerk of each County in which business is eon-
ducte~, S111ce the eI!-actment of present Article 10 of the Executive
~a'Y I~ ~946, notarle~ pu~lic duly qualified thereunder have had
juriediction co-extensive WIth the boundaries of tho State, Section
103 of the .statute makes it. clear th~t once he has qualified, a
notary public l,lasthe authority ~~ ~'eceIvc and C~l'tU,y acknowledg-
~ents ?f any mstrument 111. writing anywhere III the State. 'I'he
~xecutIve Law,. ho~ever, evidently contemplates situations whore
.l.111't~er al1the~tlca~lOn of a no~ary'~ authority will be necessary. It
p:ovldes a method for the certification of notarial signatures by the
~oun~y Clerk o.f any County in W!lOSe office such notary public
a~ .either qua~Ified ~r has filed his autograph signature and a
certificate of ,Ins official character as provided f'or under Section
~~~e A certificate of authenticaton under Section 102 may be
. . d by a County Clerk to an acknowledgment signed allywhel'e
111 Jhe St~te by ~ notary who has so qualified 01' filcu his Rignature
an ,certlficate m, such Clerk's office. '1'he latter section 'tllrther
prOVIdes that an II!-strument so authenticated may be read in evi-
dence .01' recor(:~~ 111. any. of the Counties of the State "in respect
t?l whlCh a certIficate of a county clerk may be necessary for
er" leI' purpose," ..
.' Since the Executive L~w provides for the method of authentica-
tIOn but does not prescrIbe t.hose cases where it is required it is
n~~essaIY to look ~o o~he1'. statutor~ provisions. r1'ho expres~ pro-
VISIOll or au~he~trcatlOn IS found 111 Real Property I.Jaw Section
310 a~d a~phes m terms only to conveyances to entitle thcm to be
read ;m eVIdence 01' recorded. It has been held that tJ· . .•
ment was not if t d b ,
. ' . ' ~ ..ec e
. .
y: the ne~ prOVISIOns . . lIS requue-
gIV111g notaries
state~Id~ JUllSdlction. TheIr authorIty t.o act in any Cciunty does
not ehromate the necessI'ty of' af'rllX111g 'f:i
.! • a certilcate . ,
of authenticatlOll
to an acknowledgment upon a (lonveyance to be recorded in any
INfi'murATJ Ol'INJONS Ol,' ~I'Im ATTOHNI~y-GENERAL 137
(loun ty where the notury has not qualified or filed his autograph
si"lllLtIl!'o awl (~l'rt.ifiwtte of official eharucter (1H4() Atty.-Gen. 318),
'Shwo the Heal Property Law applies in terms only to a "convey-
anew" to be "recorded," it docs not of' itself furnish the answer to
the qnestioll yon submit,
I!OWIWt' 1', Umwr!tl Constmction Law Section 11 contains pro-
visions aH to the ueknowlcdgment of any instrument required to be
acknowledged so 11H to entitle it to be "filed or recorded" in a
'
public oflke, It is therein provided that the aelmowledgment "shall
be made and ("ertillecl in the same manner as such aelmowledgment
or In'c)()!' oj' slH,,,h deed," It, is, c~e com:se, apparent that where an
aclmow}ndged mstl'um('1It IS offered 101' filmg 1ll the office of. a
County t :11'1'1\ WllPl'l' a notal',Y puhlie has neither qualified nor fi~ed
a eel'tifieal.o, HIWh County Clerk will have no way of knowing
whether the notary is duly qualified and authorized t..o act in that
caplwity. 'l'lte question is whether Gcnel'a~ C~nstrnctlOn IJa:v Sec-
tion 11 requires the ussuranee of authentIcatIOll, UP,Oll all mstru-
ments which 11m Nt he HIed, in the same manner as III the case. of
conveyallces to he l'oeortlecl. 1 am aware that ~leneral qOI~str?-c~Ioll
IJl1w Hcwtioll 11 may be open to the construction that It IS limited
to the form 01' 111<\ (!(',rtificmtioJl to be made by the ll?tary public
that an illfltrullwnt II11H hom] acknowledged before him, It may,
however, ulso be more broadly eonstrucd to assimilate the. whole
prt~(~tien with l'OSpcwt to (HlllVo1anee~ in, the c,a.se ~E lllstrum~n~~
which 111llHt he ndmowlmlf.!,'el1 III order to entitle them. to ,:fillll.,.
In that event, it WlJlI kl import the necessity of authenticatIOll of.
the notary's signature HH. well.
T beliove that the lattnr is the better view in the face of. st~tut?ry
uncertainty. Yon appreoiate, or course, that a final determmatI?n
of the Hutter (lOCH not l'CHt with me, nor may I under~ake to ~dvI~e
you offieially, 1ll:l'oym ally, }lO:vover, I may sa~ that 111 1?-y' VIew ~t
could not be cOl\sldm:cd arbItl'm:;y and unreasonable 101 you to
require an Ituth(\lltj~mting eertiJieato in the ~ltu.a~IOn \,?U p.rese?t,
, at least until such tune as there has been a Jucheral c1cternul1atlon
that it is !lot l'c'.(luired by law,
:May 27, HJ4!l
A1WIIlIlAlill R \VA'L'RON, Oonnty Clerle, New York.
EDUOA'rIQN IJAW, SEO'l~IONa 1'14, 147; l'UIJI,lO OFFIOERS LAW, SEOTION ~5-i
G~;NNltATJ 1v!UNIOIl'AI, LAW, SIW'rION 51-a-PUBLIC REOOIWS-DES'l'RUcrro •
In tho IlbHcncc of H]Jecifle statutory authority, puhlic ree?rds, as ~~ch, m~~
llot !Jo <lostroy<)(l. .Whcthcr a particu!l1r paper ~r rocot.d.ls a pub Ie reeo
shon1<l bo determined in ll'cClordallce WIth st~tUtOlY deJlllltlQn,
YOUr inquiry of May 21 a~clressed to the Secr~t.~ry of. State
regarding the storing of cCl'tam l'ecord~ l~as ?een !?ferred to me
:Ear attention Presumably the records lIsted 11l yom .letter are no
longer in cm:rent. use and YOll wish to know if and when they may
be destroyed,
 138 INFORMAL OPINIONS 0]' rme A~l"l'ORNEY-(I[O;NlmAI, 139
JNI,'omVIAI. OPINIONS Ole 'l'lU: A'l'TORNEY·GENERAL

There is no State law of general application authorizing' the ublic recorda within the contemplation 0:[ the statutor! definition
destruction of obsolete public records and this office has held that
such records may not be destroyed in the absence of specific statu-
~nd which are not, and it. is my opinion that those found to be
tory provision therefor (1945 Atty.-Gen. 77). Whether any of the public reeords may not be destroyed 11l the abs.e~ce of sta~utor1
records in question, be they deemed public records or not, are the authority therefor. However, to :wha~ extent this COl1Ch;SlO~ IS
subject of such specific legislation, I do not undertake to ftllSwe1' subject to Se(ltion G5-a of the PUb~lC Officers Law and Se~tIOI!- o1-~
of the General Munieipal Law, which provide £.01' the destruction of
(Cf. Election Law § 125 (formerly § 124), County Law Section records reproduced on films, I do not at this trm~ answer since the
180-c).
instant question does not involve such reproduction. ..'
Assuming, however, that specific statutory authoritv is lacking, ~ I hope you find this reply helpful, but as the Attol'lleY-0eIlCl:a~is
there remains to be determined which of the records listed are not authorized to f1ive legal advice to other t}~an ~g~n~Ie.s of the
public records and in this connection r refer you to Section 144 of State government, It must be regarded as altogether informal and
the Education Law, the first paragraph of: which defines such nnoffleial,
records as follows:
"In construing the provisions of this chapter and other
;r nne G, 1!l4·!)
statutes, the words 'public records' shall, unless a contrary AI.B1m'l' B, Hxrr rillll{le Clerk, Lawrence.
intention clearly appears, mean any written or printed book
or paper, or map, which is the property of the state, or of any
county, city, town or village or part thereof, and in or on CIVIl, I'RAC:'J~l(l1l: Ac'!', Sr,:c'l'IONS I077-a, I077-g. .
which any entry has been made or is required to be made by . . t 0 J U 1Y 1I1932
law, or which any officer or employee of the state or of a J"CH'l](\]OSUrl1 of mortguges date d pI'lOr '
for
" d
default 1U the
jlLL)'IlWlll 01' jll,judplll WlIS suspended for an emergeney peno ,
county, city, town or village has received oris required to
receive for :filing." In our letter of June 7, 1949 .addressed t? the Attorn~y.
C'enel'~l you aske. d whether the assignment O;T. fOlrecSltoSltlrel of a
I believe the purpose of Section 144 is to expand the normal 1
mortaaae ". •
given III 19')2'
." '" IS po
, ssible under NeWI or ~ dera 1e . aw.
J. . 1 .d
conception of what· is' a public record in order to safeguard all Th~ Attorue,y.Ocllel'al is authorIzed by law to ren ttlegaSt~~e
valuable records used in the public administration, thus avoiding and advice to officers and heads of departments 0 led d
the possible destruction of important papers and records by arbi- c ' 1 '1'1" 'f' 'e this letter is not to be regal' e as
trary or irresponsible decision that a particular record is not to be "'OVOl'nmollt on y. .nererore, . . I d' f al effort
~n official opinion but only as an unofflcia an in arm,
so considered, and this view was formerly expressed by me with
respect to records of public housing authorities (opinion of Atty.. to assist YO~l in you,r. probf~eNm, "iT 1 State law that would pre-
I know oJ: no provision 0 ew x or ;:
Gen. to State Division of Housing, August 11, 1948) and hospital vent the assignmeut of: such. mortgage.. J I '1 1932 for
records (1946 Atty.-Gen. 263).
THe 1'0rec·Josurc of: a mortgage, elated prior to 1 1 ~ ~ an emer-
On the other hand, and assuming the existence of: the necessary
default in. the paJ:mc~lt 0:[ p1'11101
1
w~i~~~s~~~~~~ce ~ct of: New
statutory a"!1thority fo!-, the destruction of public records, I call
y~ur attention to Section 147 of the Education Law, which deals
1a\
gency period by SectIon 1.077 -!1 ~. t 10 • . b' .} terms of the
with the destruction of such records in the following language: York. Any installment ~f: principal WhlCl~ ~lltt~come due and
mortgage, heeame due 1,>1'101' to :J,ul:y 1, I 1 emergency. Any
"No officer of the state or of any county, city, town or vil- payable six months a.iter expllatlOn 0 f93,' 1811C 1 'of the mort.
" .' . , 1 hi 1 by t re t.erms
l~ge or othe~ political division of the state, or of any institu- Installment oj the prineipa w nc 1'1 . 1 JU1 1 1937 inclusive
tion or SOCIety created under any law of: the state, shall gage, boeame due between .Iuly 1, 193: ane, .rt ~ ti{e cxpiration of
will become duo and payable one year at er
destroy, sell or otherwise dispose of any public record original
0: copied, or of any archives, in his care or custody 'or under such emergency. . '. . d J 1 1 1947 except for
'l'his emcrgeney period t~rml1lat~lil1Ol~ ~~1 ~ot' more' than three
his control, and which are no longer in current usc without
first having advised the commissioner of education' of their ruortgugos on owncr.occupled clwe g ay the unpaid prin-
l
nature and obtained consent." Iamily capacity, p'I'(:vic1ed ,~~~a~,SU~\~61~:~~ Pof three pel' centum
cipal amount 01. such mortgage ,ad f ' tl is latter "'roup of mort-
In other. words, eve~ though there be legislative authority for the per ann,tllll. 'l'l~c emergeJny, jC~lg49 (~Jivi\'Pra~lticebAet § l077-g).
destructlOn. of public records, as such, their destruction is never. gages w111 terminate on • u J .,"
theless subject to the consent of the Commissioner of: Education.
Accordingly, .guided by the foregoing, the officers having control .Iune 24, 1!l49
of the records III question should determine which of them are ;rORm'H P. T,lWNARD, Boston 14, lYIassaehnsetts,
 140 INli'OR:HAL OPINIONS 011 'I'HE A'l'~l'OltNl~y-(lJ.;NlmAl,
COUNTY LAW, SEm'ION 174; CIVIL PRAOTICE AO'l', SEO'I'ION ]554-CO{fNi'Y
CLERI,'S RECORDING FEES.
In !L county in which documents to be recorded in tho county clork'H of/i,:o
are copied by use of a photo copying' process, such county clerk is not on-
titled to u recording fee for copying oxtrnncous matter apP(\11(10d to or Oil-
dorsed upon the document.
This 'is in reply to your letter of Juno lG, 1949, requesting my
opinion as to the right of a county clerk to charge 11 recm;cling
fee for reproducing, in the process 0:[ photo copying an instru-
ment, certain extraneous matter appended to 01' (mdol'Hed 'UI10ll
the document to be recorded.
.As you no doubt are aware, it is not the function of tho At-
torney-General to advise other than State departments, omeers
and agencies. The advice hereinafter given is, therefore, offered
only informally in a desire to be helpful, but it is not to he eon-
sidered as an opinion of the Attorney-General.
Your inquiry is in relation, particularly, to tho legal foes for
~'ecording a deed, mortgage or other instrument upon which there
IS endorsed, on the outside or on the covel', certain extraneous
matter such as the names of the parties, a direction as to whom
the in~trume.nt is to he returI~ed, the county clerk's time stamp
and hlsce~hficate as to the time when, and the book and page
where, the instrument was recorded. In some eases, where printed
forms are used, there may also be appended to tho instrument
~xcess forms of certificates of acknowledgment which aJ'(\ not filled
111. You s~ate that all such extraneous and excess mutter is re-
produced III the record in the process of photo copying and you
mquire as to whet.her the same should be included in oornplltinO'
the u:lmher of folios for which a recording fee is charged, b My response il'l based upon your statement that your procedure
It IS elOI~entary that a county clerk should not reeord in his
o~fice any 111strl~ment llnl~ss there is either exprCHS or implied
statutory. authority for d0111g so. It should also be rcmernborsd
t~a~ secbOl~ 174 of the County Law and section lfi!i4 0:[ the
CIVIl. Practice .Act fix the fees of a county clerk for rOI\OrcUnO'
only ll1~truments ,,:hich "legallv must or may he recorded" hy him~
. I tl~lllk. ~ou).' difficulty III c?mputing the statutory l'el~Ol'ding
fee arises from a misapprehension as to what ('.ollstitn(:eH a neces-
sary part ofa deed or mortgage, for instanee, that which legally
l~ust 01' may be recorded. .Adeed or mortgage ends with 1.11 o :411 hseri r;-
tion by th~ party or parties and the witness or witnesses, it' any.
To be entitled to rec~ord .the instrument must be ac]mowlcdg(id
by the person executing It .01' proved by a :mllHcrihing witness
(R. P. 1..1, § 291.), The person taking the aeknnwleclA'lllcTlt OJ'
prot~A must endorse upon the instrument or attach thereto his
..
eer 1 cate.. thereof ~n: P. L. § 306~ a~1(l such. (]cI'tili<'.atr. and,
w~~n reqhI~ed, the certificate a~lth.ent1cutl1lA' the signature or seal,
01. oth,?.f the officer so certifying must he recorde(l togother
WIth ,the instrument so .ael~llo"\,:ledged 01' proved (n. P. r, § :1l8):
W~~Ie Il~ mstrum~nt IS required by law, rule or custom to be
entitled m a particular action, proceeding or mattcI', 01' to bo
approved by a person not a party to it, sueh title and l~m'lifieate
141
0:[ approval :;110111<1 be considered as parts 0:[ the instrument for
recording' purposes..'I'he main body of the instrument and such
above mentioned additional matter as legally must or may be
recorded eonstituto the instrument which the clerk is required'
to record and upon which his recording fee is based.
Section :IID o I' the Heal Property Law requires a recording
oflieor to.make an entry in the l'ee,ol'd, i11l!necliately after the copy
of every instrument recorded by hun, stating the hour, day, month
and year when it was recorded, and to endorse upon every such
instrument a (',0 rtifleate, stating' the time aforesaid when, and the
book and page where, the same was recorded. For this service
the statute dOCH not allow any additional compensation.
I trust that you will find the above a sufficient guide in com-
puting your Jop;ul f'ecs :for recording not only deeds and mort-
gages, but every instrument which legally must 01' may he recorded
in yOlll~ offie (1 ,
-Iuly G, 1Dol!)
Ii'R1':tl)mWK l\. N~Il'l'll, Crmnl,l/ (Jllwk, Poughkeepsie.
'J~AIi:INO DJo:f'ORPl'HlNR BY ]<'OlmWN CONfmr.A'l'loJ GENERAl,.
'!'horn would lI11PIJtl.l' to 11(\ no objection to the Royal Norwegian Consulate
G()Il(il'lll.t:altillg' l!npoHHiollH In thiH country of Norwegian subjects for use ill
Norwoglnu ('OUl'tH.
I have yOUI' letter inquiring as to the propriety of: the Royal
Norwegian Consulate General taking depositions in this country
oi' Norwegian subjects :for use in Norwegian courts.
would affect Norwegian subjects only, I gather, further, that you
would not: attempt to act through our courts. In such circum-
stances, if the Norwegian suhieets whose testimony you would
take arc willing to give their testimony when yon call upon them
to c10 so, I sec no objection to your functioning in this limited way.
'I'his expression of my views is informal and unofficial only .
I would think that it might he appropriate to consult the Secre·
tary of State 01' the United States in this matter.
July G, lfl4D
ROYAl, NOHW1WIAN CONHllI,A'rm GENJi:RAI" New York.
RWII'l' ()]i' (JZElJIWHLOVAK GOVlmN~t1'JN'l' '.voPURCHASN REAL PROPERTY IN NEW
YORK.
Upon tho prlnelploa of iJitOl'national law the Ozechoslovak Government
may pureluu«: 1'00.1 property in Now YOl·it State :for governmental purposes.
At the request of tho Governor and on his behalf I am reply-
ing to your letter to him of June 22, 194:9.
'l'he ~ub.ieet of your inquiry is whether the Czechoslovak Gov-
ernment may purchase property .in,
New York State for the use
of the Czcehoslovak Consular MlSHlO11 III this State,
 INl<'OHMAL OPINIONS Ol~ 'fIIII] A'l"fOltNIily-(h~NmtAIJ
142
I refer to you to my letter 0:1' December ll, 1!l48 ill which I
replied to several specific questions yon usked of the Govel'nor
as to the rights of aliens with respect to real and personal prop-
erty under the laws of New York. Ono of tho subjeets with which
my letter dealt was the right of foreign goveruments to acquire
hold and dispose of real property, In that letter I aaid : ' as to the meaning of the phrase "general public," I would say
"TI,tel'e is, no specif~c statute in New Y'~)rk Rtate relative
to this subject, Foreign gover!1me~ts ,WOU1(1 have the right
to purchase and hold property in this State Jor governmental
purposes under. the genera~ prin(!iples of international law
pursuant .to wInch. a stat,e IS considered a person eapahls of
entering into relations WIth other states awl
'of, a,cquiring rights that ~t may possess, of enjoying and
exercising ~hem, of perfo;'mu;g .the leg~l obligations ineum-
?ent upo:r It ..and of .1llvolnng in Its relations with other states
the appl~catlO11 of international law' (IPiore'H International
Law Codified, p. 106).
tv 111
. ny t reaty
jrA J existence
• between the United Rtnf(-i-l and the
foreign government seeking to acquire real 'estato in the State of
New York would, of C01U'Re, have to he ('oIlHidm'('( 1."
July 6, 1949
SECRE1'ARY OF S'l'A'l'E, Washington, D,C,
SANI'l'ARY CODE-CnAP~rl~R V, REGur,A~'ION 1.
The term."publi~ water supply" us 11S0<1 in this l'ogulutitlll ('.(lV('rH potable
ti~~er supplies serving th~ generalJ;lublill irreapeetlve of oWlI(H'Hhip or opera-
'rl ' exce~~ those exclusively serving a camp, hotel, sehoul or iustitution
, 10.term , ~onel'lll p~blic" as usod herein refill'S to u group of: fnmlllna Jiv:
mg m separate dwellings but not IJlU't o:f ll. camp, hotel or institution,
D,Yo~r letter of. J.une 30th, 1fJL1[) a~dl'esi-led to the Binghamton
Istr!'ct Office of the Department or Health has been referred
to thI~ office for reply. You request a clarification of the definition
"~l1blIc :Water .~l~pplt'whteh ,represents a part of' Regulation I
of Chapter V of the State Sanitary Code.
I am informed that the Public Health Council of tho State of
New York, ,!hel1 enactI~lg Chapter Vof the Sanitary Code, was
eonceI'r;t~d WIth regl:latlOl1S which would Iaeilitat e the sanitary
sllpervI~lOn, of pll~hc water supplies by lonal departments or
~rlt~, ll1S0f~lr ~s might .be necessary to illS1:l'C the: delivery 01: water
.. sa.re, samt~IY qualIty and the protoetlOn crl: nOllHmncrs from
waterborne dIseases. The defi.nition given by Hoo'llJation I of
Ohapter V ~as pl1l'I~Osely made suflicicntly broad to ~(wver potable
water s~lpphes SerVIl?g the g'eneral public irl'csp(wtive oJ: their
ownerslnp or operatIOn, other than those ('xclui-lively flel'vinO' a
camp hot I 1 J . , . .. . ' ,.
'" e, S~ 100. ?1' ll1ShtutlOn. On the other hand, the routine
to"
,
~~~e1VlsIOn of ~mb!Ic: water SUIT[llies by. t~le cmgitHH~l'ing ,staff or
epartn:ent oJ Health had of: necessIty to he resl:rwtecl to
water supphes of: sllffieient siJ~e to W/UTlIllt df'1'ai1f'c! supervision
INI"Olt~[AIJ OPINIONS Ol~ 'l~IIE A'l"l'ORNEY-GENERAL 143
and which at the same time would be practical for the engineering
force available. 'I'he Council therefore included in the definition
or Public Water Supply all such supplies serving a group of ten
01' more dwellings, .,. . .
III answer to the other question raised 111 your eommunieation
that a group of families living in separate dwellings, but not part
of a «amp, hotel 01' institution, obviously represent the "ge~eral
publie" IlH. that term is ml~cl ~n the PUbl,ic Health IJaW~,Sallltary
Code and In general practiee 1ll the public health field. 1h,ere£ore,
water supplies serving the group of property owners which J:"ou
represent would be cJasi-lifi.ecl as a public water ~upply coming
under tho provisions of Chapter V of the State Sa11lt~ry Code,
Mr .•J, IJCO Brennan is the District Sanitary. Engineer for !,he
Binghamton district and has his office at 709 KIlI1'l;e~ Press Build-
ing, Binghmntol1, N. Y. I am sure he would be willing to dISCUSS
this matter with you or with. yOUI' cl~ellts ~nd to arran~e lor.
supervii-lol'Y services through his office, .n:c~udll1g the cOlle~~JOl1 of
samples of water :f:01' nnalysis by the DIVISIOn of Laboratones and
Researeh 0 [' tho State Department of Health.
Since the AUm'ney"General is charged by statute to .render
formal opinions only to ~he var~ous State Departme;nts, this com-
munieation must be considered mfol'mal and nnoffleial,
July 13, 1949
MIIll'ON (Jownrmmm, Binghamton.
GENEItAT, BUSlNlCflS TJAW, SEC'froNS 40, 46, . '
The provisiolls of Section 46 of the, c,ited law which fix t~e rates of 11ltcr~
est which IHtWllbrokers mu.:J: exact i;t CItIes having a populatIon of 200,000 or
more do not apply to the city of Bmghamtoll.
'.rhis will acknowledge receipt of your ,letter 01 July 11th tin
which you ask i:f: the provisions of: ~e:tlOn. 46 .of the G~neral
Business Law which fixes the rate ?.L interest wll1c~ p~wn?lokers
may charge in certain citi~s is applicable to the husiness of pawn-
broking in the Oity o:f: Bmghamt?n. .' 01.
'1'11e rates thereby allowed are III excess of the ll;aXllnlllll 6/0
interest rate fixed by Section 370 of the Gen~ral Business L~w,
What is now Article 5 of the General Business Law (Sectlon.40
ct seq.) if> derived from Chapter 3~9 ?:f: the .Laws of: 1889: SectIon
1 of that Act by its terms provI~lec1 that t~e Chapter ~as t~
apply only to "* '*' * the cities of thIS state .haymg .a populatlo~ ~f
two hund)~ec1 thousand or more ** ill." ThIS Ident~cal language S
now contained in Section 40 of the Gel~eraI BUSlr;t~SS Law. T e
h
•..•. 0 '1' 8'OC'·(·1·0]1
provlHlOns , .,' 46
.. 0'1' 'that
. IJaw
. ' whl(.~h deal WIth
, ~ the• rate
1 'thof
interest wIdeh may be exacted by pawnbrokers a::e IClentlca WI ..
the language of: Seetion 7 of the 1?8fl rJ~lW. Smce the present
Sections 40 and 46 of the General Bl:Sllless Ilaw both come.1!om ~hle
i-lame original statute which waR deSIgned to affect only CItIes :V 1
1t
a population of two hundred thousaFlcl.or more and substantIally
144 INFORMAL OPINIONS Ole 'l'HE A'l"l'ORNEY-GENERAIJ
all of the provisions of all of the Sections of Chapter 339 of the
Laws of 1889 have been incorporated with very little change in
Article 5 of the present Business Law, it seems to me that the
provisions of Section 46 of the General Business Law relate only
to pawnbrokers in these cities mentioned in Section 40 of th~t
L~ , is a power commonly used by .court~ of ~rimina~ jurisc!iction to
I note that Section 24, Subdivision 24, of the Charter of the Oity
of Binghamton (Chapter 751, Laws of 1907, as amended) authorizes
the council to provide for "licensing' and otherwise regulating'
* * * pawnbrokers >II' 'I' *" but contains no authority to fix rates of
interest which such pawnbrokers may exact.
That being so, I do 110t believe that pawnbrokers doing business
in your city may charge interest in excess of the maximum allowed
by Section 370 of the General Business Law without being subject
to the provisions of Section 2400 of the Penal Law,
I do not believe that the City may supersede these IJegislative
commands by local law under the City Ilomo Rule Law purtieu-
lady in view of the provisions of Section 2500 of the Penal Law,
Your request for an informal opinion indicates your familiarity
with the limitation upon the authority of. the Attorney-Golleral
to render legal advice to officers and departments of the State
government only. Necessarily, therefore, the foregoing iH rendered
informally and unofficially with a desire to he helpful to you, It
is not to be considered a formal opinion of the Attol'ltoy-U eneral.
July 18, 1949
ROBERT R. CO'l'TON II, DelJt~ty Corporation. Cownsct, Binghamton,
CHILDREN'S COURT Ao'r, AR1'WLES 1 TO 4 INCTJUSIVEj Com: OF Gml\IINAt, l'1t()OE-
DURE, SEm,'IoNs 659, 660, 661, 662·e, 870, 913-11 '1'0 913-d, INC:r.uSlvrr..
?-,he Children's Court of Monroe County is without jurisdi(\tion to commit
children under sixteen to State hospitals for observation ItS to UHlir mental
~ health, However, in respect to wayward minors between tho ages uf sixteen
and twenty-one, tho provisions of the Code of Crimiuul Prncoduro tUO appli-
cable.
Your letter of June 7,1949 requests my opinion as to whether 01'
not a Judge of the Children's Court 0:1: Monroe County has the
power to commit for observation to the Rochester State Hospital a
minor as a mentally ill person. It is stated in yout' letter that in
some cases custodial care is essential to make a diagnosis.
The Attorney-General is authorized to advise State offleers and
~epartments only. Consequ?ntly, tl~e ensuing discussion is merely
mf.ormal an~ must be considered SImply the personal view of the
writer, and In no sense an opinion of the Attornev-G eneral,
The Children's Court Act of the State of New York Laws of
1922, Chap,ter 547, as amended, if'l applicable to M()nr~e County
and the Children's Court o'l MOnl'oe County. (Children's OOUl't Act
§ 1 and L. 1942, c. 119, § 1.)
The jurisdiction of: ~ Chil(h'ell's Court in respect to children
under 16 years of age IS earefully defined ill the Children's Oourt
Act, Article 1, section 6. The duties and powers of the Children's
INli'QltMAr, OPINIONS OJ!' ~'n:m A'l'~'ORNEy-GENERAL 145
Court in respect to children of whom it has [urlsdletion are specifi-
cally set forth in Al'tielml 1, 2, i.l and 4 of the Children's Court
Act. I do not find among such powers the power to commit a child
to a State hospital Ior observation as to insanity.
Oommitments to the State hospital 101' observation as to insanity
protect a d~ll'endl~nt charged WIth C;'11ne :1:,1'0,111 trial until he h~s
recovered Ius sanity. 'I'he purpose 01 the Children's Court Act 111
respect to cl~ildl'ln.l 111Hlor Hj years of .ag~ i~ ll;0t t? pu~ish such
children as 101' crime, and the court's [urisdietion in this respect
is 110t It urhninal j urlsdietion. 'I'here is "neither right to nor neces-
sity for the procedural safeguards prescribed by constitution and,
Stl~tutc in criminal. eases.' People v, Lewis, 260 N. Y. 171.
Moreover the Children's Court Act itself expressly provides the
OOUl't with 'all the powers nceessary to examine into .such a. child's
sanity through. physicians, J.lsy('hia~l'ists 01' p~ycholow~ts of ,Its OWl:
appointment Without resort to the ~tate hospital s~afl: lll. t~e manner
provided by law for eourts having criminal jurisdiction. (See
Children's Court A(·.!; § § 20, 21, 22 and 24.)
If it be deemed desirable that a Children's Court should ~ave
additlonal power to have a. child's ..1l~()ntI11 condition det.ermll1.ed
through use. of a State, hospital s~aff. 11~ tl.w m~l1ner prOVIded for
defendants III courts of criminal [urlsdictlon, that remedy should
be provided by the Legislaturc rather than by: .a stl'amed con-
stJ.'1.lction of: the Children's Court Act. ~uch adclltIOnal power. has
been given to the ChilClren's Court III resp~et to proeeedl~gs
against these l'CSPOllSillle :1'01' tl;e support of. children. (See Ohlld-
ren's Court Ant, Art. III.A, § 30·a, subds. ~6 ~lld ~7.~ ...
Since the Ohildrcn's Court is a Court of limited Jur.lsdIC~lOl~ a:u d
its powers arc definitely enumerated,.,[ do not th11111: that ~~li
power to commit a child under 16 ;vear~ of ~ge to a State hospita
for observation can be properly implied fr?n~ the present pr~.
visions oJ: the Act. I am, therefore, of th,e opinion that the Judge
0:[ the Children's Court of Monroe County d?es not !laVe the
power to commit for observation to a ~tat.e hospital a c:]llld under
the age of lG years who is Huspected of bemg mentally Ill.
In res )ect to wayward 1llin~r~ who include P~l'SOl1~ betw~en t~e
11 0 'e of 1~ and 21, I think a chfferent rule ~Pl?lIe.s..'1 he . Ohlldre~ s
C~lU't of Monroe County has concurrent JU~'lsdlCt~on ll;dall. PIO-
eeedings !l]'hdn" ill., MOJlroe County res pec! ll1g ~aYCw.aI, mllpnorros
, to • • 1 f the O'0 d e 0,( rnnllla -
pursuant, to PI;1't .~lX,. tNlt ,e seyve:1-a( §o § 913.a to 913-d, inclusive).
endure of the State of: ew or c . f 16 d
'I'his jurisdictionl'eIates to "any person between the ages 0 an
21." (Code of Criminal P!'occc1~lre § D13-a.) . ,.
'1'1 Acts set forth in SoctlO11 913-11, although no!' a emIle, are
ClcaI~& cl:i;ninal offenses for whose violation penalties 01' confine-
ment may be imv(~se~. (1937 Adtt~.-GSen·t?93·170 may be applied
'1'h C ] of Crnlllllal Proce Ul e, ec IOn ,. .
by aecouOr\\a'~il1g juris~~ctio?, of ad~f~i:I~7~ch~~~f~esw~~~ ~~
offense wI11ch IS not a. Crllllt·he. Sl~~~iO~ cof the deFendant's sanity
examination to determmc e qu
 1 Ni"Oltl\IAI, OPINIONS OU' 'l'Im AT'£ORNEY-GENERAL 147
146 INFORMAL OPJNIONS OF THE A'l"l'ORNEY-GIDNl!:RAL

b . tl·(I 11m! the tl'l1ffiH violations referred to therein a~'e limited ~o

by the procedure set forth in the Code of Criminal Proeedure
§ § 659,660, 661 and 662-e,
~ Ill. °t' "11K or the V ehiele HIH] 'rraffie IJllW,. In the light of this
V10 11 J() ,
restrietiol\ aiul . ,III. the ahsmwo of"SpN'111C
f.l 1?gl~a
"J t'IOn t 9 th
,. e .contrary '
Accordingly, I am of the opinion th~t ~he, O~lildren's Court or
Monroe County in the exercise of Its [urisdiction over wayward
I ']0 not beliovo t hat ont.of-stllte, convictions, which of course,
. (11 not 11(' violatlons of the Vehicle and 'J'l'affic Law, should be
minors may in its discretion, commit such wayward minors to a WO\1 ( .•.. " ". " J tl on
State hospit~l for observation as to sanity in the manner provided COJlSH e ,
klered 11" prior oJl\'llses III dctel'1l1111111g w ie 101'. a pel'S
" . . . b t ff del'
by Oode of Criminal Procedure, Sections 870, 65D, GGO, 061 and should he punished ns a second offender 01' su sequen 0 en ,-
662-e, , As yon nrc 110 l!t!nht aware, the Attorney-GeneralIs not auth~r~
ized to render OpiJ1lO11S to other than the heads of the State gove;lll
July 21, 1949 ;~ent acting in their offif'illJ «apaeities. T!le7'e~ore, the ~oreio~nr
rliscnssion must bt~ deemed, to b~ entirely informal and uno CIa,
'l'HOMAS .T. lVIEAGI-IlTIR, J1tdge Ohild1'en's COUl'l, Rochester, civen in the desire to he 01 SCl'VH'e to you.
t'>

VEHICLE .AND TRAFFIC LAW, SEO~l'ION 70 Bnnns, 10 AND l1,-TRA'F'FIO VIOT,A.

L
,July 27, I fl·W
nONs-NONRESIDENT OPERATOItl:l-ltEOORDING 'l'Im CONVW~l'IONS ON
LICENSES-PREVIOUS OUT'OF,S'lWl'E CONVIO'!'lONS,
W, VIN (lI':N '1' (litAllY, ])islrid Ji/;lol'?tcy, Poughkeepsie,
There is no requirement that the trial conrt, 01' the elork thereof', before
whom a nonresident is convicted of a vlols sion of the Vehicle and 'l'ra1l1c
Law, record such conviction 011 the out-of-state license oj' It nonrealdont
offender, In the absence of speelfle legislation to tho eoutrnry, out-of-state
traffic violations, not being violations of tho Vohiclo and 'l'l'lllIk Law, should
not be considereil as prior offenses in determining whether It 1)111'SOn con-
victed of a violation of the Vehicle and 'I'ruffle Law ahould lm punlshed us It
second 01' subsequent offOllcler.

I have your letter of July 19 requesting my views with regard

to the procedure for justices of the peace to follow in dealing with
certain traffic violations,
Your first inquiry is whether a New York justice of the peace
should record a New York traffic conviction on the out-or-state
license of a nonresident operator or a motor vehicle. Section 70,
subdivision 11, or the Vehicle and 'I'rafflo Law contains the general
provisions requiring the trial court, or the clerk thereof, to record
traffic convictions on the operator's license or a person so convicted,
That section states that the conviction shall be endorsed on the
license "when space therefor is provided by the commissioner, in
such form and in such manner as the commissionsr may prescribe."
'I'his requirement of recording convictions appears to be limited to
licenses issued by the New York State Commissioner of Motor
Vehicles and there is no specific mandate that the trial court or
clerk endorse licenses issued by other states, However, I point out
that subdivision 11 or Section 70 requires the trial court, or the
clerk thereof, to certify certain traffic convictions to the Commis-
sioner; and ~hat, section relates to the conviction "of any person," , "·0 "GO sunn 2-CElt'fn"ICJA'!'ION OF NOMINAi'IONS
'JoJU:C'flON LAW, HIW'I'lONS 70.' ~;» '. w, ) '" '11' Vo'rING MACHINES nY BOARDS OF
thereby making It necessary for the judge to report a nonresident's llY l:'\I':URW1'ARY m' H'l'Nl'b--llmlAI(AnONI~ALTO'l' OF QUESi'IONS SUBMITi'ED,
conviction to the Commissioner, although there is llO requirement 1';f,IW'l'lONS""",Ollllmt 01" 1'Itl';OEOgNUE ON, " t ' f city is within the
Jl • tlous aulJlU1tteil to vo OlS 0 It 'L
that he record the VIOlatIOn on the offender's out-of-state license, 'l'he fll'rflllg'l'IlWn1: 0' quea " 'tl bsence from the ElectlOll aw
iliRI\J'lltioll of' Ow llOtlJ'l! of (1h'dwIlH, III ie au: '
In reply to your second question, inquiring whether an out-or- uj~ H)llWifle diJ'l·(1tioliH. h
~tate traf'B;c ,conVIctIon should be considered by a New York justice '11' t 0 011' letter of July 5, 1949, as t e
111 determining whether a person convicted before him is a subse-
,. "
J am l'epl~'IIlg' mfOlllla
',! ,
7
y d~ise only the officers of the, State,
Attorney-Gcnerul may offlcI~lI,y a . th ballot of local questIons to
quent offender, I refer you to subdivision 10 o:f: Section 70 01: the'
Vehic~e and Traffic Law, ,That statute provides lor the penalties Yon inquire as to the POSltt ll 01:
enty at the coming election,
lor violations of the Vehicle and Traffic Law and distinguishes he SUbl1,littetl to the vote:s ?a·· y'0~lt pC~~\ that .
between first, second and third 01' subsequent offenders. It 'should Election Law § 250 PIOVI es 1 1 1 · ,
 148 INFORMAL OPINIONS OF THE A~'TORNEy-GENERAI,
HIt shall be the duty ox the board ox elections >I« >I« >I« to cause
the proper ballot labels to be placed on voting machines
>II **" . ,
Under Election Law § 266, subd, 2, the form of submission of a
proposed question is prescribed, and it is provided that,
"* * * where the question >II '*' >I« is submitted only to the
voters of a territory wholly within a'*'* city, I;n~('h form
>1(0
shall be determined by the board of elections. * * *"
The Election Law does not contain any speeifle direction as to
the order in which questions submitted shall appeal' upon the
ballot, and the h~w is equally silent ail to the order in which the
nominees of an independent body shall appeal' upon the hallot
(see M,atte'r at Chilcl~~ V. ()1lI'1'((;/l, 1.Sa. Mi~e. ID5, at p. lOG).
Obviously; ~x the form ox SU?llnSSlOn IS t? be determined by the
board ~f elections, the order of precedence u; also :1'01' the hoard to
determine.
By analogy to the custom of arranging candidate» in the order
o~ ~~ell' ~lllpor~ance based upon t)le extent 01' the political sub-
d:vl~:on Ill. wlucl.l they. are; eandidates, .snch as State, judicial
district, congressional district, eountv, elty or tOWI1 and ward
questiions certiifl et1 by the Secretary or.. State
..' .'
(See Election Law .,
§ 7~), should have precedence in the order to which they are so
certified, followed ~)y 11;e questions submitted for dete]'llliu~ttion by
the vot.e1's III the CIty, III such order as the board of elections may
determine,
In Childs .v. CU1'1:an (supra), it. ~as held that as between inde-
pcnde~t bodIes. nominating by petition, the Secretary of State was
not ~Ullty of discrimination because he declined to place the ticket
nom~nated by a very large number of petitioners above others
nominated by a lesser number of petitioners,
,The order in which these propositions are certified to your board
might wel~ be adopted by you as a rule of precedence, and if all
are fi~ed slll1Ultane?usly, It wOtl.Id se~lll that you can exercise your
OWl1 Judgll1ell~ a~ to the orc~er 1ll which they are to appeal' on the
bStalltot, .followmg the questiona sent to yon by the Secretary of
f,. a e.
August 1, 1949
COMMISSIONEHS OlP EI"EcnoN, Pouglikeepsis.
ELEC'l'ION LAW, SElC'l'IONS 117, 151, 300 E'l' sgQ .......Amn:N·vlr.Jr. VO'l'lens-GAININ()
~~~~~O~~N~~~I~SIllENCE-VOTJ:Iif()BY lVIE:r.mEllS OE' AUMlm PO~W)~S DUJtlNU
A qualified v~ter enterillg tl~e armed forces in time of Will' may continue
to yote from his pluce of l'osldonco. at the time of in$luction cltll'ing his
~e1'lo<1 of service, without porsonalregistrntion where l'eqnir;'(l j {lllOn hocom.
11~g a student at a son~inal'Y of learning ho may still vote In: ahsolltee ballot
f1 Ol~ sucll place, prov;1l1ed he 01' some mombor of his :f'lunily llC\tulJlly I'osicles
tholeat, but llllLSt rogls!;m' IHll'Sonnlly where sueh l'ogistrnj;ion is required.
I am replying informally to your letter of August 2, 1949,
IN1"OltllIAI, OPINIONS or 'I'Im AT'l'ORNEy-GENERAL 149
,
atldrosHe(l to the Secretary of State and by him referred to me, as
the Attorney-General may officially advise only the officers of the
State.
Under the provisions of Election Law Section 151 and the War
Ballot Law, so long as ~'?u wore a member of the armed forces,
you were entitled to eontinue to vote from the place of your resi-
dence at .the time you entered snchservice, without personal
registration. Upon becoming ~ college student,. under the pro-
visions of Scetion 151, you continued to have the right to vote from
such place of residence, provided yon still maintainecl it, only so
long aR yon continued to be a student, but were required to be
pcrHOlHlll J'l'egiHtered each year. . .
, Having eCllHct1 to .he a student you may continue to register a~c1
vote from the same residence only if you or some 0:[ your fa~lly
actually maintains a residence there to which you have the right
to go. • .' .. .
Under Se(~tlOn .117 you WIll continue to have absentee vo~mg
privileges, l'egal'dl.ess of wh?re .you spend most of ~our. t,lme'.
provided yon continue to maintain the Queens C?unty address as
your residcllee, are duly registered, and do not register or vote else-
'vhere. .
No formal dedaratioll of intent is either necessary or ~ffectlve,
in order to maintain your status as an inhabitant o~ this State.
It is your intent as evidenced by your conduct that will determine
such status. .
It is not within my province to advise you on the subject of
taxes.
August 10, 1949
IJOUIS O. SpmNas'l'I~I':N, Brockton, Mass.
]lI,N(l'l'lONLAW,SIW'I'ION 100.
Whore !L person has voluutLtrily separated from his wife ~ithol1;t formal
agl'e<mH1J1 t or eourt doeree hut continues to support ~ler and his faI~lly at t~e
family home, whore he viaits his children at stated 1~tol'v.a18, questlo.ll of his
right to vote Prom such fl\1nily home must be determme<lm the first lllstance
by tho Board of Inspectors subject to the review by the courts, saeh case
being <lctorIninnblo by its purticular faets.
I am replying informally to you~ letter of July 30, 1949, as t~le
Attorney-General may officially advise only the off!.cers of ~~e State.
Residence for voting purposes is synony~ous WIth dO~IClle. dT:e
situs 0:[ one's domicile is determined by lllt~nt,. as evidence Y
acts indicating that the person desn'es to maintain hIS. permanen~
home at a particular place. Accordingly, a voting reSIdence m~J
be in one place and the actual 01' temporary place of abode m
another. nined . divid 11 If your voting
Each ease must be c1etel'rtllne 111 IVI ua y. b '1. th
' ,1. d st of course su mI e
qualifications are eh~Len~e 'L· YOUSll~~· ' 17"0 'rhe ~letermination
affidavit required by ElectlOn" aw, e.e 101~ • . '.:E th
of the question in the first instance. IS Wlthll: th~ pr?Vlllce.? t t~
Board 01: Electioll Inspectors. TheIr det.ermmatlOll IS supJec
 150 INFORMAL OPINIONS OI!' 'l'IlE A1"l'ORNJiJy-Ol~NlmAIJ TN I,'OHM AI, OPINIONS CW 'l'IU: A~r'l'()RNEy·GENERAL 151

review by the courts in the manner provided by Scetioll 381 of tho wol'!( of all approved ~'igh,lh grade plt~111enta:'J:'" sehoolor c:~ a higher
Election Law. Sd1001 ill whir-h IUllghsh If; the )anguage of n~stl'l1ctlOn. Such an
institutiou lIPl'C] not be locntcd J,11 the State of New,Yorl~, or ~ven
August 12, 1949 in the Ilnitr«] Ntatl's, so lOIlg' a~ it l!ppellJ's to the satlsf.ae:tlOn of ~he
OTTO HELLESHEIlImI~, Plushing. board of registry that mngl~Hh IS ~JlC language of instruction
therein am] that the work certified to II'l at least elJual to t~at of an
approved eightl,l grade elementary school, public or private, as
EU;QTlON LAW, SEC'I'ION 13H(2), <,omluc!Nl in t1UH Ntate. . .
TI;e :wo~d "other" as ,suec('ssi:~lly ~Ised ill this, 8(letillll rofors buck to (Ill Ilndor the faets set forth in your secoud qne~tlO~1 ~t w,ould not
t1~e Iimita IIn~osed by 1)1'101' ,elI1SSlf1(~al;,l(nls;, houee l,n.II couu tJ' hlll'ing hotweon seem that the illspeetOl"s l'cnu~rl\s, (jon~tJtutec1 intimidation of a
2.1,000 and 2.10,000 populatiou, 11 drSIg"lInt,mg petlbion 1I(1('d 1I11t in Illly O\'('lIt voter aH cleJi.ncc lin Penal Law SeetlO11 712, .
bear the signatures of more thun 500 unrolled votel's. ' In 'anHwCl' to your third question, the Information s~t forth on
I am replying informally to your letter of AllgW-It 4, 1 fl4,fl, as the the hade of all armed I'orees'dis~dlln'ge 1S t~ken ~rom ~ervlCe records,
Attorney-General may officially advise only the offiecrH of the which as to previous eclueatlOllal qnalifications, IS ~ased upon
State. statell~~mts of the peraon hhnseH w~tieh ,are rarely vel'I~ed by t~e
The word "other," a~ :~l~ceessively used in that part ofl<;leetioll military authorities, and thcwefore, 111 this respect, the discharge IS
Law SectJ~n 136, sl~bchvJSlOn 2, which reads as follows, " .... 'II for nothing more than u self-serving doelaratlOn and e~nnot be ac-
the following public offices the number of siguatures need not ceptettpnrsultnt to Bleetioll Law §, ~68 as a ,sub~tItute for the
exceed the following limits: '" * 'II for any ofl1ee to be filled by all ccrtifi('ate or litel'IH'Y required by BlectlOll Law SectIOn 1.62 (1),
the v?t~rs of any othet· (emphasis supplied) ('0l111ty or bor~ugh In answer to your fourth question" a person ~onvlCtea. of a
containing .more than twenty-five thousand and not more than two felony, and thprnal'tel' pardoned 01' p'JV?ll a certJficate, ?f. good
hundred fifty thousand inhabitants according' to such enumeration conduet (~ee Blcc·tion Law Sectlon 152) IS under no obligation to
* * * five Jn~ndred signatures; >11 ~ >11 for Hrny offiee to he filled by exhibit sueh document to the inspectors at the t~me of r.egIstratlOn,
all voters of anv other (emphasis supplied) county, >11 >I« >I« two However if l'lutlleuged, he must answer satisfactorily all the
hundr~d fifty s,Igna~ures * >I« *" refers back to all the limits imposed questioll~ set :l'orth in se(·tion 172, in order that he may be per-
by prtor classifications. mitted to l'egiHter or vote, . ' '
Hence, ,as Chautauqua County, according to the Just Federal AH to your fif'tli question, any complu1l1ts relative to the conduct
~numera~IOll, had 123,5,80 inhabitants, designating' petition!'; nam- of: literu'ey tests under Sec,tion, HiS shOUld, be a,ddressed rto the
mg eandidates for n~mll~atlOn. to county-wide offiees, regardless of Board of Hegents 01' the Umverslty of the State 01. New Yo ,
the result of the application of the five percent rule set forth in the
first part of the subdivision, need not bear the slguaturca of more August 16, 19~W
than 500 enrolled voters of the party involved, " KATJt: S, HIWl', Clyde,
August 13, 1949
BOARD OF ELECTIONS, Mayville. CONSJmVA'J'ION lAW, SEC'I'ION 66-.~AWS 1 , 1936 OR 870-LAWS OF
F ,., ' " -IT S 0 A TITLE 17
°M
UlB7, UlI. 14: AND 7B5-,T!'A'I'HJ~Tt JaGUES ONUMEN!-,."· ,
HI':(l'I'lONH 1 AND ii, SlJJlIl, (g). " C Ill' e
'1'110 ClHlHOI'VIltioll Department may &"I'ant p~'lniSsiOll ttot ql\1~~l1Geor~e 1£
ELEO'I'ION LAW, SEO'I'IONS 152, 162(1), IG8, 172; PENAl, LAW, Hl':C'J'J()N 77.2. to 11ilVO It nlp!i('ll ninde of: the Patl~or .1 oguelH, ;11111~101l f l~h~"State of New
(1~ 'l'l~e educational justjtu~ion l~llrllishillg the ('el'ti!i(!IlI;(l whleh is lI('(w)ll;. n 1)(1 when tlnl H(',ulptol' thOl'('OI l.lSslgns to t 10 eop e 0
able In hen of the statutory Iiteraey eertifi(~nte 1I0N\ not ]1(\ ono lo(',ntml in YOI']t, tl]() (',op~'l'ight thoroo:f,
'}', aJ'il I'll re<'ei!)t 0[' your request of July 29, 1~49 f,ohr myRopiniond
the Sl;ate ?f New York (2) elementH of intilllic1ntioll hy inH)l(wtor r1jR(~uss(Hl
(3) II c,ertrfic;lte of .discharge f'~'olll tlw lII'lIwd :I'orees milY HoI; hn Il(wppte(ias ', '. Y 1 ' I t Fat er aymon
II, substitute 1.01' a literacy certJ1i('ate (4-) oue pardolled nt'ter f(llony (',OIlVit,. as to whether the State oj' New orr may perm. Y k to
tlOl~ may, not be compelled to exhibit HllllW to blsl,eetol'H \Vh(HI n\llliviug £0'1'
regIstration, ' , , Behauten, l~resident of Canisi~s OollS~eI~~~l~:~~sN;Mch °s~a~ds
have a replwa made of the statue 0 k ,,' , d . niche
I a,m replying' illfol'IiJ.al~:r ,to your J~tter 0 I' .July 28, 1fl40, as tIle on Stat~ land at I.Jake George, such I'epliea ~o be place ,m.a
Attorney-General may offiClally adVIse Oldy the offie(l]'s of the
State, ' , , in ~he Seieuee Building, of the ~ollege ~n~lIfS~a~~ ;1~~~I~I~~~ti~
he granted, what partwlllal.' agenc.y 0 1e 0
Uuder E lectioll I' , ...S' ect''lOll ",)"
,Jaw 1("8 III l'
' ,wu of the eertil1cate 0,£ same, I J ' Monument" of which
literaey described In s~lbdivisioJl one, "a new voter nUlY present rl'he "Oom1l1is~ion for J!'"'ather saae. ogues.
. was o'l"lntetl
,
power pursuan
t to
~ i< '*, a certificate or chplollla showing' that he has completed the commission you were Coh Ul.l'mall, 0 ' ,
 152
Obaptcr870 of the Laws of 193G, to "soloet all appropriate site 011
state park lands on the shore of Lake George for the erection Or a
monument to perpetuate the memory of Father Isaac ,Too'neo "
'1'1lIS
' statute was t hereal'ter
f' amended by Chapter. 14 of' the Laws
b
of:
'1,
1937, and again at. t1~e same session by Chapter 785, in order t~
empovyel' the comrmssion to erect suehrnonument. 'I'ha life of the
commission has expired,
The !ands, described in the Act, ~lpOl.1 which the monument was
authorized ~o ?e ~r~cted ~nd on which It. actually was erected, are
under . t~~ [urisdiction of: the Conservattou Department Hthrough
t!le division of lands, and :f~rest~" (Conservation J.~aw § (6).
Hence the monument 1ll question IS under the same Jurisdiction
I~ appears from the papers submitted with your inquiry that th~
design of the statue was copyrighted by the sculptor, Charles Reck,
on October 18, 1937, such copyright being No. 27114 in crass G,
The .same was ~;~anted under the authority of: U.S.O.A. Title 17
SectlO~ 1, ~rovldmg that the owner of a copyright "shall have th~
excl!1slve right '* '* >I« ,~o copy >II '* '* the copyrighted work." Under
section 5, subd, (g), works of art, models 01' designs for works Or
art" may be protected by copyright, and under subdlvision (h) of
t~e. same section, "reproductions of H work of art" may be
slmI.lady protected. There. appear to be no reported decisions af-
fectmg ~he. making of replicas of: a statue, but analogous decisions
as to p~lll~mgs appeal' ~o be in point; so, for example, the author
of a painting may acquire by copyright the sole liberty of copying
the saI~e (fouis Dei,onger:. db 00. v, Breuker &; ](essllw 00.• 191 F,
35, aff~, 3D S, qt.6, 23D U..S. 33) and under section 28 of the
same TItle copyrights are assignable,
It appears from the sculptor's letter to you of July 28 1949
that he IS prepared to assign such copyright to the People' of: th~
State o£ ~ew Yor~{,. !rth~ copyright is duly transferred to the
State, and If .the p~vIsIOn of Lands and ]:orosts in the Conservation
Depar,tment.Is willing to permit ~nc.h repl~ca to be made, I can see
no legal objection to such perrmssion being granted.
In vie:v of the limitations upon the authority of the Attorney-
~ener~ll~l respect to the rel~dition of f~l1'mal opinions, this expres-
SIOn o~ VIew must necessarily be considered to be informal and
unofficial. . mnko a UPIV ('ousoliilnl:l'<l indox of' notices of lion filed In his office prior to
September 6, 1949
HARRY A. REOUX, Warrensburgh.
VIT,LAGE I",AW, Sl~O'l'ION 186.
i
,It ~eoms ,tlu~t procel,ss issuo(l by a villago polioo ·jllstiC'.l! ill oh.n
b e sOIl'ed wlthlll the vJlllIge terl'Itoriallimits.'
. ~rh!s .wi]J~ck~o~ledg'e r?ceiptof your recent letter in relation to
the mVII .Jurl~d~ctlOn of: vl~luge. poliee ;jl~stice (!(Jurts. You inquire
whether t.he CIVIl process 0 r a VIllage pol)(1e justice extends lJe,rollCl
INli'OHlIlAL OPINIONS OP ~'H]] A'r~'ORNEy-GENERAL 153
the village lh,nit~ to, the same degree as process issued by a justice
or the peace l1l justice court.
Seetioll.1,8G of the Village Law, as amended by Chapter 501 of
the IJllWS of 11111 provided in part : "The police justice shall have the
same [urisdietiou as a justice of the peace of a town in civil actions."
N~~Han CoulIly Y. Dorn. (lH1H) IG8 N, Y. S. 534 which indicated
that "The territorlul jurisdictiun of a police justice cloes not extend
beyoll<l the boundary of the village in which he is elected and civil
process isstted h~' him must be served. within the village" was
decided upon the stututory language quoted above,
Chapter (HiO of the ]JltWS of 1H27 added the phrase at the end 0:[
the Language of the ]nll statute ",» in which a resident of the
>11< >11<
village is It Illtl't~' >II >II." Beetion ISH of: the Village Law presently
>11<
contains such Iunguagc,
I do not believe that the IH27alllCndmeJlt added to or detracted
:fr~m the limitations upon the service or process which previously
existed. .
1HOS Attv-Gen. 527
]Jni"d v, 'Helte?' :1.2 App. Div, 2:3
Ill/oneill v. Buoneto 278 N. Y. 284
Aiello v. Yale TrllmsllOrt 001'p. 174. Misc. 8(j7
il'liwl'icun llistm'ical8oC1:oty v, menn 248 N, Y. 445
'I'he Attorney-General is authorized by law to render legal advice
to oj'fiem'H and departments of the State government only. Neces-
sarily, therefor!', 1he l'ol'cg'oing must he considered at having been
rendered informally and unofficially with a desire to be helpful to
you. It is not to he considered a formal opinion of the Attorney-
General.
Selltmnuer 21, 194H
.TOHN A. J)OLVEH Jn., Police .I'lts/iceJ Amityville,
COUN'I'Y (!I,I~l\](H-·-C:ONH()J,m.\'l'lm TNllNX O}, (Jlo:H'I'AIN JJIF.NS IN Cmt'I'AIN COUNt/us
--TNlJlilX Ob' CON'I'nAP'J'H ]<'Olt CONIJl'I'lONAJ, SALl~ ())' GOODS '1'0 BE Al"b'JXICD 'J'O
RI~AW'Y-COUtlty Law, Soction 172'1\,
HI'I.tlOIl 172'!l of the County Lnw, npplylng' to C011l1ties having II pupula-
tlon 01' ](lSS thnu Jlvp 11 uurh-cd thousnnd, dnes not authorize 1\ county clerk to
(:111' o/l'p(\til'(' (lntp of suld scctlon uud indoxod.uceording to Inw,
('outJ'l\(,ts 1'01' the «onditlonnl sule of gooels affixed OJ' to be affixed to realty
nro Hot "1i1'IlS" nn 11 IUII~Y not he indexed in 1\ eonaolidated lion index.
'l'hisis in l'oply to youu letter of September 27, 1949, requesting
lily opinion upon eertain questions submitted by you in connection
with the upplication or
8eC'tion 172-a of the County TJaw.. ,
It is Hot the f'nnotion of the AttorneYcGeneral to adVIse other
eliSOR mURt than State ofl'lecws, departments and agencies, Any advice here-
<
inafter given il:l, therefore, offered only informally in a desire to be
helpful, hut it is not to be considered as an opinion olthe Attorney-
General.
Section 172-a 0:1: the County I"aw is a new section which was

154 INFORMAL OPINIONS Oli' ~'Im A'l"J'ORNEy-GJo:NmIAIJ
added by Chapter 566 of the I.JltWB 01' Hl4U, cffcetivc Apri) 1'1 III
and reads as follows: ' " ,49,
"§ 17?-a. Consolidntd uulice« [or certain lieu» iu ('(wi(/.;
cowniies
. In "counties having a pOI)Ulati~ln or 1eHH than f ve hundrarl
thOLlHU.nc1, the, eount;): clerk may instull and mniutain a BhJO'I
consol,ldated index, III lieu of all other' iudiees require 1 '1 ~
law, -ro,r t,he pur])o,He of, indexing' alphabetieallv '1[1 11'('III'S lJ,
ffecti 1 ' ,< ' , or
el~cum branc~s a'l~e:,lllg rC!1 proper-tv ree{)!'lled 01' Jilnd in his
o!fice, except mortgages, lis pendens lIJl(1 ,llHIg'llWlltH."
) ou request advice as to the following' q 110HtiOllH :
(;c May. ~ien~, docketed ill other li(\]~ dockets prior to April .1:1
~ ,JdU,
In ex?be transferred to and entered J1l the new ('o]lHo[idllted
. ,. II'e'
.,' II
'. 2. If the alJ~wer to the first question is ill the ufflnuutive will
It then be possible to elminutc tho other lieu do<'1wts? ' only the officers of the State,
. 3 lYraJ: contracts 1'01' the conditional sale or (j'oo(ls affixed or
r~de~
b· ~ affixed to realty be indexed ill the 110W (~)]}Hol ida 1t~cl Ihn~
In ~he. con~tl'nction ,o~ Ht~~tlltes the g'llllel'ltl rule 1101 that all
z:
r-r-
INl;'ORMAIJ OPINIONS 01" THE AT'l'ORNEY-GENERAL 155
It is my opinion, therefore, that contracts for the conditional sale
of goods affixed or to be affixed to realty may not be indexed in
the new C011Holidated lien index.
Oetoher 7, lH49
,n
CIJARI!lN()]] IIucKIJE, Oownty Clevk, Lyons,
CONS'l'I'l'U'l'lON, AWl'WT,I': 2, SIW'l'ION 1-ET,EC'1'JON LAW, SEC'l'rONS 168, 169-AcT
01" (JONClRJolHS Ji'nl11. 10, 1855, 'J.2 U.S. S'l'Nl'. 1022-FlRs'l' VO'I'ER-PROOF OF
I,I'l'ImAUY.
Where all allen woman married l\ U. S. citizen Oil March 16, 1921, she
thou nequircd eltizenelrlp, but as she (lid not attain her majority until Sop-
tomher ] 1122, she must produee u certificate of literacy in order to be entitled
to vote,
1 am 1'epl:)'ing informally to YOUl' letters of September 12 and
Septomher 2G, HJ49, as the Attorney-General may officially advise
You inform me that your wife was born in a foreign country
in Septemhor 1H01; that you became a citizen of the United States
on May 20, 1H20 j that your wife arrived in the United States in
November lD20; and that you married her on March 16, 1921.

~tatutL~ ale p!.esUl.ned t(! J1ll'I;lSh ~l rule I'OI' futuro action onlv and Under Act of Congress, February 10, 1855, § 1994, repealed
It a ~lea~ expression 0"1 legislative pln'pOHe to jw·;til'v ;'etro- September 22, 1022, § G, 42 Stat. 1022, any alien who married a
ae Iwe application
thi (Jacotni«
1 v,. Oolqale
' " ,."1J 17 N .')t. ~",),
'J "1':, ;1 i(')')
a-t citizen of the United States prior to September 22, 1922, became
, see ~o 'llll~' ll: 10
t statuto under considerat ion which l:p;lllh'es a citizen of the United States as of the c1ate 0:[ the marriage. There-
o~ ren <LUt.lOIlzes U county clerk to make H new index 01' notices fore your wife became a citizen on March 16, 1921.
? 1 1:11 a~~lllst, r~uI llrOl)er~y which .wcre tiled ill his o{'fil'e all~l However, the Oonstitution of this State, Art. 2, § 1, provides in
me e:ce(1 according to ,law pl'~o,r to t,llOcffe(!tive date 0 I' the statute' part as follows:
~l1c1n~ t?e absenc~ oJ ,a speeific legislative direction therefor. ther~
18, n~ egfuLI authority f'or such action (Warlswo,l'lh v, u« of ~~lIper- ";I< ;I< >1(0 after Januarv first, one thousand nine hundred
V'/-ROI S 0 zV.1.npslon ()07L?,dY ci al., 217 N. y, ·18-1, 5(0), twenty-two, no persou shall become entitled to vote by attain-
lle~':\;~y °r.n~lOn your first question should be HlIHwm'C'c1 in the ing majority, * 1/1 unless such person IS also able, except for
>110

sa~;." e w uc 1 makes an answer to your aeeond question unneecs- physieal disability, to read and write English."
1111 consJiderilngl the 11,lird question subrultted hY, von it should Your wife having become a citizen on March 16, 1921, did not
11e
"liens"'ememoerec t iat t (: uea
t1ie sstature 1 ]s onI? with indiees
, , ' , to. pertain
,., then acquire the rIght to vote because she had not ~t~ained her
majority, 'l'heref'ore, in 110 ev:en~ could she b~come enhtle~ t? vo~e
c

th~);i~~ei,~ de\111ed as ,a hold OJ: ela,im whidl 011e pel'HO]) hUH upon except hy attaining her maJorIty. She atta111e~ .her maJorIty 111
ardiPII. ' y 0Vp. al1.10,!~,lel. as,secul'Ity lor some deht 01' (\!uu'p,'C' (lV(wds September 1D22 and flor that reason the prOVISIons of the Con-
stitution and 01: the law relative to literacy apply in her case.
of g'oodl1ases,
••,<
. o .r .<l,l])
' "; 227) ' A, (,(llltl'I'
' . ~(I.t' 'I'Ol' tl. 1ll (lOll< I'ItlOnal
, sale lt consequently follows that if your wife desires to vote, ~he
a s'lI .s IS I~Ot a .lell. Bueh a contl'aet IS merely a llH'Hlliol whereb '
must comply with the provisions or, Elect~on Law ~ 168 rel~tlve
int~ tl~~ pr~~:~:I~s tltl:- t? the f'0otls cven thongil he c1eli~'ers 'thel~l
, s,cal posseSSIOn oj the lJU"cl' 011e N'llJ.10t a q' I' to the production of a certificate of lIteracy, and she IS not entlt~ec1
upon property wl"1 1 1 d J. .• , C Ulrc a J.en to take advantage of the provisions or Election Law ~ 169, whICh
th'e event of a c1ei~~~lt~~l ~l~:a y owns and ~ontinucs to 0'Yl~' In permits an illiterate person to vote who "became. entItled to vote
sales contract, there is no fore~~~~r~f 1! }1~lyel 'l1l~der a condltlOllal witl1in this state on or before J anuaryfirst, mneteen hundred
e~se, the statute provides simply that ~l~el~~ll)~ the 8 711,ell" In such and twenty-twO."
SlOn of the goods, providecl h . . , ' , Cl may leta m posses-
peace or other violatio .. ,e J.ll~.Y ~10 so WIthout a breach or the October 13, 1949
shall be retaken b' 1e1.1"11f the cllllllllal law; otherwise, the goods
replevin (P~r'sona/P;'o7)~ LJ~~,C§~sh,)l~at is, through an action in RALPH I..JAKAR, Bronx.
 156 INFORI,\IAL OPINIONS OF TEE AT'l'ORNEY-GJ!lNloJRAI,
ELEC'l'ION LAW, SECTIONS 171, 172, 331-CHHLENGING ApPI,IOAN'['S Io'OIt RI'lGIS-
TRATlON-CHALLENGE AFFIDAVI'I'-PIWClmDINGS AS ~'O RIWIS'I'RA'l'!ON Io'O·n.
VO'l'ING.
Where ~n applicant for registration is challenged, if lin rofusea to answOl'
a~lY question upon the. challenge affidavit, the inspectors shall not register
hIS name and the applicant has no remedy.
I am replying informally to your letter of October 10, IH49 as
the Attorney-General may officially advise only the oflicers of 'the
State.
'I'he Challenge t~ which you refer was presumably one Con-
templated by Election Law § 171, and I assume that the paper
you w~re requeste~ to e~ecute was the challenge affidavit, form of
which IS set forth III section 172. .
W~lCre an ~pr:licant fo~ registration is challenged, the law
provides that, If the applicant shall refuse to *' *' 01« answer any
question upon, the challenge affidavit the inspectnrs * * 'II< shall
110t register Ins name."
. It.would appear that your fap~n'o to execute a ehallonge affidavit
Jus~lfied tl:e ll1speqtors JJ1 failing to enter your name in the
regIstry· If you believed yourself entitled to be l'cgistel'oc1 and to
vote III the Town of Arietta, yon should have boon willing to
~;ecu~e a challenge a;ffidavlt, and had this boon filed, then under
El~ctlOn IJaw. § ~ 71, 11 by your answers to such challenge you had
satisfied a .maJorlty o! the board of your right to be registered, they
were req~ll'ed to regIster you as a voter. If thev were not satisfie~l
ofsueh right they were required to point out to you the qualiflea-
tions which you lacked and they we~'c forbidden to regiNtCl' your
name except by order of a court Or [udge,
. Under, such circumstances, a remedy existed which is described
m Election Law 331, and the application there referred to could
have been ma~e to any Supreme Court Judge or to the County
Judge of Hamilton Oounty.
October 24, 1949
WINDSOR ELDREDGE, Tribes Hill.
ELEC1'ION ~W, SECTIONS 241, 2'18 SUDD. 1, 261, 266 SUDD. 2·-Ar,OOHOI,IO 13l!'V-
MAGE ONTFROL LAW, SECTION 141 SUDD. 3-REQUlJtEMI'.N'I'S FOR VO'I'l~G
AOUINE- 'ORM OF BALLOTS ON VOTING MACHINII:--LOOAI, OPTION FOR
T OWNS.
It,would bo impl'0re~ to use ~ol'e than one ballot frame on the votln
~;ch~ne for tho submisslon of a smgle local option question or to leave COIf.
~i~J~:~Ollal amonclments off tho machine to make room :/'01' l~~,al option quos.
~ acknow:Iedg~ receipt of your letter of October 17, 1949, in
~1:1ch you inqurre as to ~he propel' procedure in printing ballots
for vo~mg upon local option questions pursuant to the provisions
of Article 9 a! th~ Alcoholic Beverage Control Law.
f I .am repl:png mformally thereto as the Attorney-General may
o fleially ad,:lSc only .the officers of the State.
For your information I enclose herewith a copy of an opinion of
I Nl"ORM AT, OPINIONS OJ!' THE A~'TORNEy·GENERAL 157
this offlco rendered to the Sceretary of: State on September 23
1947, which eontains the answer to your problem.' Since that
opinion was rendered, the placing of the submission of local option
questions upon the voting machine has been expressly made
mandatory.
Even it there were fewer amendments and statewide propositions
being passed upon, it would still be improper to use more than one
ballot frame for a single local option question, and it would
certainly be improper to leave the constitutional amendments off
the machine in order to make room for the local option questions.
October 27 1 194,9
HAl~RY M. BUOWN, Oommissioner of Elections, Warsaw.
Er,NC'l'ION IJAW, SI.;(J'I'IONA 173, 209, 331 SUllD. 2-ENROLI,MENT BY VOTERS-
MI~'l'H()]l 01>' (JANVASSIN(I-l'ROCEEDINGS AS TO RmGIS'I'RATION FOR VOTING.
A quulifled voter who enrolls as a member of a party may compel inspec-
tors to receive his vote at a primary election, although his name docs not
appear 011 the enrollment bocks, by appropriate court action.
I am replying informally to your letter of: October 17, 1949,
addressed 'to the Governor and by him referred to me, as the
Attorney-General may officially advise only the officers of the State.
Assuming that- you duly enrolled as a member of a. political
party on election day 194:8, you were entitled to vote at the fall
primary held on September 6th last. No negligence of the board
of elections in compiling the enrollment books could deprive you
of this right. .
Under Eleetion Law § 331, subd. 2 you could have made appli-
cation to the Supreme Court or a Justice thereof or to the County
Judge of your county, for an order .directing the inspectors of
election to receive your vote. Not having clone so, the question of
course has become academic.
As to the other questions set forth in your letter, you should
consult private counsel.
October 27, 1949
Ar,mm'l' SCIIN1~lDmH, Elmsford.
Er,EO'I'ION I,AW, Sl']C~rION J.l7-AnSEN1'Icm BALLOT-INVALID CONFINED AT RO:M;E
OR IN HOHl'l'I'AI,.
A quull fled voter not all inmate of n v~terltJ~s' lIo.spital is not entitled to
an ubsoutee hullot on the ground that he IS an invalid.
I acknowledge receipt 01: your letter of O~tober ~9, 1~49 in-
quiring as to whether there are means by which a~ lIl;valId con-
fined at home or in a hospital may vote. I a~ replym.g informally
thereto as the Attorl1ey-General may offlcially advise only the
officers of the State. ' . . .
Election Law § 117 contains speeiflc rules and limitations as to
the right to vote by absentee ballot.
 158 INFORMAL OPINIONS OF ~'HE AT'fORNlily-GENERAL TN1o'OUMAIJ OI'INIONH (lIo' ~l'Im A'f'I'ORNEY-GENEUAIJ 159

While an inmate of a veterans' hospital may vote by absentee claHS('H therein mentioned, "the hoard shall dctemrine whether the
ballot, the right of any other person to so vote is limited to one dutil>s, CWlnllHltion or ll\1HinoHH, HR Ret Iorth in the affidavit, are of a
who is "unavoidably absent from the county of his residence be- nature OI'Clilllll'ilr to l'('l\uiJ'(' absence 1'1'0l1l the county or ordinarily
cause his duties, occupation or business require him to be elsewhere to require trH\'C'j1ing' beyond the boundaries of the county, and
on the day of election." >II >II
>110 if not >Ii' >II oJ' such H nature, whether the special eireumstances
No provision has ever been made for persons, other than inmates >II '"' arc suffleient."
of a veterans' hospital, to exercise the right of franchise when they Where the hoard of deetiolts consists of four members, a major-
are unable, because of being invalids, to get to the polling place on ity vote in favor of g'l'Hnting the application is required. If the
the day of election. board cOtU,iHt'S () l' two !lI('11l hers they must both concur in granting
the same.
October 27, 1949
O(.to1Jer :n, 1D4D
SOPHIA LIflWIS, Almond.
J. \\T. KNPNlm, OOlllmisSl:0'}l.Cl' of Rledions, Norwich;
CONSTITUTION, AR~'. II, SEO'I'ION l-ELEO~'ION LAW, SEOTION 150-PImron 0]'
RESIDENOE REQUIRED.
The requirement of foul' months residence in order to he quallfled to vote PUIIf,W IIgA1/J'1l LAW, HI':C'J'IllN 10.
is satisfied by residence in either tho county, 01' the cit;}', 01' tho village. "Bonnl" lIH usod ill HulldiviHiou (j of' S()(·tioll 10 means the Stato Depart-
mont of Ileulth.
I am replying informally to your letter of October 19, 1949,
addressed to the Secretary of State and by him referred to me, as Permit me to lIdmowlcdge receipt of. YOt1r letter dated October
the Attorney-General may officially advise only the officers of the 21 HJ4!l 11d<1I'CHSN] to the Attorney-General, in which you ask for
State. an'illtel'Ill'etlltioll of the word "hoard" as it appears int~e follow-
The requirement of four months residence in Election Law § 150 ing portion of' Subc1iviHion Ii of Section 10 of the Public Health
is satisfied by residence in either, the county or' the city or the village Law of the State 01' New York:
regardless of how often the voter has moved within either the
county or the city or the village during the four months period. "* *' 'II' the bourd is unable to agree as to the compensation
>110

The language of Article 2, § 1 of the Constitution as amended
in 1946, is the basis for the subsequent change made in the Elec-
tion Law. The intent of the change was to permit persons to vote
who, for example, had lived in the Oity of New York 'for foul'
months, but had moved from county to county within that city
during ~h~t period.. The sam.e principle applies to persons who
live III cities or III VIllages which are located partly in one county
and partly in another county.
October 28, 1949
OLAUDE 'B. WBITING, Imspecior of Elections~ Athens.
ELEm'ION LAW, SECTIONS 117, 118 SUIlD. 2-AIJSEN'I'EE BAT,r,o'l'R.
. The burden is npon an applicant for an absentee ballot to establish his
rIght thereto. Hence a majority of a board of four momh;rs, 01' both mem-
bers of a board of two members must eoneur in voting to grunt tho same.
~ .acknowledge receipt of yo~r letter of October 24, 1949, in-
q!-urlllg as to the rights of applicants for absentee ballots and the
r!-ghts of the boar.d of. elections to reject or accept such applica-
tlO11S. I .am repl~lng informally thereto as the Attorney-General
may officially advise only the officers of the State.
Th~ burden is upon an applicant for an absentee ballot under
Election Law § 117, to establish his right thereto. ' Applying
Under Election Law § 118, subd, 2, with the exception of the
to be paid for. U~lY of such lands a~ld. tl~e structures t~ereon, ,
the court of: chums shall have jurisdietion to determine the
amount of sueh compensation, * '"' oil."
'rho AttorlH1y-Clenerlll is authorized by law to render legal aid
and advice to oJ1ie<u's and heads of departments of the State
government only. 'I'herefore, this letter .is not to .be regarded as an
officlul opinion but only as an nnofflcial and informal effort to
assist you ill your problem. . .
As you know, prior to the (\rea.tl~n .of. the State Department of
Health and the office of the OommIssIOner of Health by Ohapter
29 of the Lawu of ID01, there cxisted in this State, a State Board
of Health, which had the power to ~equ~re land by. purchase or
eondemnutiou in (l(ll'tain emergency situationa (Chapter 661, Law~
of 18~Ja). 'I'here appears to be 110 doubt tha~ the draftsman of
Section 10 of the Publie Health Law had the :f.or~e.r State .B?~rd
(rt Health ill mind when he used the word "board III SubdlvlslOn
6 of that Slwtiou. . . t
Beetion 15 of the Public Health Law provides m part-
"Wll(>jH'Vel' the term 'state board o:f. health' occurs or any.
."'. " I it h 11 be deemed
l'e!:el'()lwe ill made thereto, III any. aw, 1 sa,... . I.
to
mean or 1'(\1'01' to the tleplll'tJUcnt o] heal.th as clescnbed m t us
article. >II «0 *'."
• ••
the provlSWUS o.f: S eet'10,'
11 15 of the Public Health Law
. . 1 d t th
to S1.1u(liviHion (J of Scction 10 of that law, we are e . 0 e
 160
conclusion that the word "board" means the Stato Depllrtment of
Health.
This conclusiou is strengthened by an examination of Subdi-
vision 6 of Seetion 10 of the Public Health Law, which clearly
states that, after an agreement with the owner as to the compen-
sation to be paid as limited by all impartial appraisal, the Com-
missioner of Health shall complete the remaining details of the
purchase, 'I'he Commissioner of: Health, of course, if! the head of
the S~ate Department o~ ~Iealth, (Section .2, Pn~)li(j H~~alth Law)'.
It IS therefore my opimon that the portion of: Subdivieion 6 of
Section 10 or the Public Health Law which reads:
"If: .th~ board is unable to agree as to the compensation to
be paid 1:01' any or such lands and the structures thereon the
court of claims shall have [urisdiction to determine' the
amount of such compensation, * >II *."
means that if the Department of Health is unable to agree (with
the owners of the property) as to the compensation to be paid for
any of such lands and the structures thereon, the court of claims
sh~ll have jurisdiction to determine the amount of such compen-
sation,
October 31, 1949
THEODORE G. Km:,m;Li'ICK, Buffalo.
JUSTICE COURT ACT, SEO~'ION 80 i CODE OJ!' CrttllUNAL !'ltOOIWURI' SI"m'IoNs 154
156. 'J'
A constable's jurisdiction in civil matters covers entire couuty. He may
ma~ce an arrest upon the warrnnt of a jnstice of tho ponce anywhere within
,thoh' county.
This will acknowledge receipt of your letter of October 25 in
relation to the jurisdiction of a constable.
"Proces~ in justice court runs throughout the county in which
the court IS held, so a summons or precept issued by the justice can
be s~rved on the defendant anywhere in the county" (Morrison on
Justices of the Peace (1949) P, 20, cf. 1943 Atty.-Gen, (Inf.)
.August 5, 1943 (unreported) ).
. .A town constable is a pe~ce. officer under the provisions of Sec-
tion 154 o~ the Oode of Criminal Procedure and, as such, he has
the authority ~o make a~l ar:-est,. without a warrant, of a person
who has committed a cnms III hIS presence any place within his
co.unty. (People e~ .rd. Oonway Br'os. v. Aud'ilors ct' aX., 126 App.
DIV. 487.) III addition, a peace officer (i.e, a town constable) may
u: ake all arrest UPOI; tl;e war:ant of a justice of the peace (magis-
tr a;te~ any place within their county. (Section 156 of Code of
Crn~lllal Procedure, 45 St. Dept, Rep. 326, People ex 1'CZ. Salaam v.
~h~tney,32 App, Div. 14~). The warrant of a Supreme Court
JUstlC.~, or, County Oourt judge may be directed to any "peace
offi.cCJ; of the State. (Section 155 (as amended) of Oode of
Criminal Proeedure.) (1943 Atty.-Gen. (IIi!.) 169).
INl"Oltl\lAI, OPINIONS 01" 'rIm A'J'~roRNEy-GENERAL 161
'I'he Attorney-General is authorized by law to render legal advice
to officers and departments of the State government only. Neces-
sarily therefore, the foregoing is rendered informally and unoffl-
cially\vith a desire to be helpful to you. It is not to be considered
a formal opinion oj' the Attorney-General,
November 3, 10M)
WAL'I~m~ A. Pmmy, (JonstabZr, Cambridge.
lDr,JCl:~'ION LAW, BI';("l'lllN 1fil-OAIN1NCl OR T,OfHNO A RIr,SIDENOE.
A l'(lsi(l(1l1t of' tltifl Hlnlo entering f('(l(1l'lll scrviee outside tho State does
not losl' hif( rig-ht of SUJ'fI'Ug'l' hero sol(l]y because of his absence incident to
such (llllj,l11.\'IIWUt, hut his .]eg'al r10111iciio ~ust remain in this State and he
must uut i u'(:mltI to make hlS pormaucnt rosideneo elsewhere.
I am l't1plvillg' informally to your letter of October 31, 1949,
making' ill<lIlil'~' HH to YO~ll' right to retain a residence for vo.ting
pUl'pOSml ill Nnw York CIty, as the Attorney-General may officially
advise only the Offi(~()l'fol O[ tl~e State, . ,
Eleetioll Law § 151. provides, "l!'or the purpose of regIs~ermg
and votiiur no jWl'SOU shall be deemed to have * * lost a residence
by rew;ol\l"ol' hili «< * absence while employed ill the service of the
tTnitetl StatC!H * >II *."
Under this statute you would not lose such right to vote in New
York as yon may. have had at the time of your appointment in
:fec1e1'al service solely boennse oj' your ahs~llce for t~Iat .reason.
However in order to continue to have the right of voting III New,
, York City your legal domieile must remain there, This means that
yon do not intend to make'. your permanent home elsewhere. .
In PeopZe v, (Jady,. 14:1 N. Y. 100, the 0011rt of .Appeals said.
wl'lle domicile '01' home requisite as a qnalifleation for vot~g
purposes, means a residence which the voter. vohmt~rIly
ehooaos and has a right to take ~s such, a~d whieh he, IS at
libcrty to leave itA interest 01' caprice may dictate, but WIthout
any present intcmtiot), to change it."
November Of 10:49
Ih:RMAN "V. CAMl'Bl':L,L, Washington, D, O.
CONH'l'J'I'U'l'I()N, AWL'. rr, F!Ji:C'l'ION 2-Till,Ef:'l'IQN IJAW, SE(J'l'~ON 117, ~UBD, 1-
I~OR AnSEN~ EE BALI.OI.
AUHI'.N'J.'lm VO'l'INo"ll.l'.MlONH ]'Olt Appr,YING
One who (1Olltrompltltos IlHll'rlugc and subsequent absence on a hOlle~~I~~n
would not, soom to be within thut class of persolls 1~lO a~'t :l:avo ~bl
abseut hoeuuse his duties etc. require him to be e sew ere, 1 em~, 0 - a
ful that tho t(l1tillg of a J1.on?YlnOOl\ trip WOUld, l~e comprehendd~l wl~mi:f~~
elutinA, ete.., whieh weru within the mtelltioll of the People an ie eg
ture wlren tho provlslon in question was made.
I am replying informally to your letter of November 1, 1949, as
the Attorney-General may officially advise only the officers of the
State.
 162 INFORMAL OPINIONS OF 'I'I-IE A'I"I'OHNgY-GI<:NlmAL
On behalf of the board of elections of your county yon inquire
whether the board may send an absentee ballot to a duly regis-
tered applicant, who in his application for the absentee ballot
states that he will be away on election day fol' the reason that he
will be on his honeymoon,
Under Election Law § 117, subd. 1, it is provided that:
"A qualified voter, who, on the occurrence of any general
election, may be unavoidably absent >I« '*' '*' >Ii' from the county
of his residence because his duties, occupation or business
require him to be elsewhere on the day of election, may vote
as an absentee voter «< * *,"
'I'his provision was authorized by. a constitutional amendment
(State Const., Art, II, § 2) couched in identical language,
A person who contemplates marriage and thereafter plans to go
on the traditional honeymoon trip, would not seem to be in tlie
classification of persons who are "unavoidably absent '* * * because
his duties, occupation or business require him to be elsewhere
,» * *"
I doubt that a honeymoon trip constitutes "duties, occupation or
business" as intended by the People and the Lcgialature when
provision was made for the absentee ballot, (of. Sheils v, If'lynn)
164 Mise, 302, 310-316, aff'd, 252 App. Div, 238, arre1, 275 N, y,
446,)
November 12, 1949
HARRY G, HEHMAN, CO't~nty Attorney) White Plains.
CODE OF CRIMINAL PUll(JJCDUIIT<:, SJ!X1'1'ION6-CODl~ OF' CRIMINAl, PIWCI,:nI1lUol '1'I'!'I,1;
III, PAR'r V-SUIJS'l'l!l'U'l'ION m' VII.I.AGI~ AS PAU'!'Y ON AI'1'mAl, I"ROM CON-
VIC~'ION ~'OR ~'HT<: VIOT,NI'JON OF A LOCAl, S1'ICICDING OitIJINANt'I';-'VU,T,AOI;
kl"I'ORNEYS CONDUC'rING Ap1'Jo:AT"
Village cannot he substituted in plaee of tho people oj' the Stat(l of New
York as a party Oil an appeal f'rom n eonvietion f'or tho violation of II loeal
speeding ordinance prosecuted by the village nttomey, An appeal therefrom
should be handled by District Attorney,
This will acknowledge receipt of your letter of October 17, 1949
and enclosures, requesting the opinion of the Attorney-General as
to the procedure to be followed by you with reference to an appeal
taken by a defendant from a conviction for the violation of a
speeding ordinance of the Village of Seneca Falls where the
village ~ttorneys have requested that the Village of Seneca Falls
be substituted as a party and that they be named as sole counsel.
Section 6 of the Code of Criminal Procedure requires that a
criminal action be prosecuted in the name of the people of the
State of New York as plaintiffs against the party charged with
crime. I fin~ n.o st~tutory provision authorizing the substitution
of or th~ bringing in of other parties and, therefore, my view is
that a VIllage cannot properly be made a party to the appeal.
Appeals from courts of Special Sessions in the eounties other
INI"OHMAI, OPINfONS 01" ~l'IIE A'l"I'ORNl<w-GENERAL 163
than thofH~ within the City of New York are regul~ted by Title III
or Part V 01' the Code of qrimillal ~r.oceclure. It IS apparent, fr~m
an examination of the various prOVISIOn::; thereof that the District
Attornov h;; the proper official to conduct the appeal on behalf or
the people of the State of New York. Hmy-ever, I can see no real
objection to tho village attorneys appearmg as counsel for YO~l
U])on the appeal if that may be mutually ag~'eed upon b~tween
von and without compen:mtioll from the county, 01' appearing of
~'()u;lsel :1'01' the complainant village, 'I'he propriety of. the exp~nse
that might he incurred by the village for the services that might
he rendered by its attorneys 11:p011 the appeal has not been con-
sidered by me and I express no view theron,
Si!we it ifl not within the province of: the Attorney-General to
render opinicus to or ad vise others than officials of the State
covenuuent, yon will appreciate that the views expressed herem
~re givell informally and unofficially in an effort to be of some
assistauee to yon.
November 14, ]JJ49
IIENIW Wl\L Koorr, District Attorney, Seneca Falls, .
, --COl;;'I \; W(;1':1':\10'(j[;nlIN~,
('OLJN'I'Y ( "l'ION "lIlI-OrI'Y
0]' Lo()!O'owr CTIAWI'Tm, SJo:C'I.'JONS GO AND 331
1'lwcmDtTlU'1, 'rrl'J,E m, PAWL' V-DU'I'Y ()]' DIS'I'RIO'r
CI'I.~Y ORDINANCE,
A'J"J'IllINJo:Y ON 1\.1'1'l'1AI. lellUM CONVl(J'l'ION FOR VIOI.A'I'ION OF
Tho DiHtript AHorne,\' iH the propel' .of{~('.illl,tO~lU~clle ftncl, argue b~hlllf
0:1
ol' tho people nn uppenl from u convwtlOu ll~ .E oliee .Tustwe COUlt of th~
Cil;j' of Lnekport j'o]' U violation of !110~!l1 ordinance prosecutecl by the COI-
pOl~nti()Jl Counsel.
T have your letter of October 31, 1949 requesting; th~ opinion of
th~ Attol'ilCy-Oencrll] whether'it is your (h~t~ ~s DIstrlCt ;\-ttorney
of: Niagara County under Section ~OO, subc1lVlslOn 4, of, the Oounty
Law, or the duty of the (lorporation Counsel of the City of ,Loc~f
port nuder Sections GO and 331 of the Charter of the CIty 1
IJo(IJ~port, to handle and argue on behalf of the pe~ple an appea
taken by the defendant to the County Court OT ~Iagara Cfunti
j;;'om !t ;.,onvitltion in Police ,~ustiee Court of the CIty of Loc {p~r ~
for /l, violation of a local ordinance prosecuted by the CorporatIOl
Counsel. . . . . .' ther
Appeals from eourts oJ' SpeCIal SesslOns in the CO~ll~tl~S ~'tjr
than those within the Qity of Nev: ~ ork, are regulate ,y rue
HI of' Pari' V of the Code of CI:Immal PI:ocedure, SectlOn 75~
til~reof:, . pr~vides that a copy of ~he affldavit ~f errors be :erve f
upon the District Attorney; Soction 759 prOVIde,S tha IC~do
.r , ., ", 1 D' tr t Attorney' SectlOll 7 6t1noprovi es
argument be gIVen to t ie .. IS 1IC d th District Attorney'
that a copy of the return be serve upon, e, ., bri ~
and finally Seetion 7G2 provides for the D!strI~t ~tto~~y rll1¥s
ina' 'on the ~ppeal all well indicating that the District orney 1
th~ proper official'to conduct the appeal on behalf of the People of
ths~~t!~~so~ON~~dY30~r of the Lockport City Oharter while pro-
164 INFORl\I:AL OPINIONS OF THE A'f'fORNEY-GENImAIJ

viding for the prosecution by the corporat!on counsel of violations

of ordinances before the city judge, are silent as to appeals from
such convictions. Where the Legislature has seen fit to give to the
Corporation Counsel of a city power to conduct an appeal from a
conviction for a. violation of an ordinance, it has done so in no .
uncertain terms. See County Law, Section 203.
, It is my view, therefore, that it is within your duties to handle
the appeal in this matter 011 beha~f ?f the respondent. .
However I can see no real objeeion to the Corporation Counsel
appearing 'as counsel for you upon the, appeal if that. may be
mutually agreed upon between you and WIthout compensation from
the County, or appearing with you as counsel for the complainant
City. .
Since it is not within the province of the At~o1'ney;General to
render opinions to or advise others than offleials of the State
government, you will appreciate that the views expressed herein
are submitted informally and unofficially in an effort to be of some 'PaWN TJAW, RJ,:n'I'H~N 2:1. .\ "', of StlllOrvisol' and postmaster are ineom-
assistance to you. :It is not Jw\lllllCd that t Il\ UIIICl S
pntil lIe. 25 .
November 14, 1949 r, . r , 'letter or November in
'l'hiH will Ild{~I~)wlt\(lp;c,r~cel,Pt °tici) °1~6IJerlY be appointed acting
WILLIAM E. MILLER, District Aiiornes], Lockport, W
hi<'1 1 yOU nsk If a flupervlflol COl. .'
,'" 1 t' .' i t serve as StlpeJ.'vlsor,
loH
! , tmufltel' unc eon mue 0,
. . th t tl HaJne person may 10
1 ld more than
•
ELEC'fION TJAW, SEC'I'ION 226-Tnm Ar,LOwlw T~W'r,OYImS '1'0 VO~'Ir,-.PJo:NAt, rl'hegcncrul rule IS .. a . l~.'... iding there is no nonstitu-
LAW, SEOTION 759-REFUSAL ro PERMa' EMPr,oYlmS '1'0 A'I"l'ImIJ J~J,E(J'I'ION one public offiee at the t~bt;e tlI~; f~~~;npatibility preventing the
-AWOHOLIC BEVI~RAGE CON~l'ROL LAW, Smc'I'JON 106, amID. Ii-:-HAJ,E or
ALCOHOLIC BEVERAGES A~' :R,Il~'A!TJ FOR CONSUMP~'roN ON ~'HJ~ PItl~:rvIIKJllK.
tional or statutory pro 11 IOn... erson (1943 Atty-Gen. (Int)
Bartenders cannot be lawfully employed ns such while tllll polls 11m open holding' of said ?ffi('~H bY th(~ S~lt~~te fion or in the ·statutes barring
on the dny of election; thence when employed solely us such thoy muy not r.()) I find llothmg III t h e .ions 1 U. ,
take advantage of the provisions of the election and penal JUlYS respecting' 1101lii~lP; both offiCCH i.n the pr?sentm~a~~:il' functions are ihcon-
the granting of time off to vote, nnd payment therefor. Public', of{1c,(lf;, arc me()mpatl1~e whe . d the same person results
I am replying informally to your letter of November 14, IH49, sistent and ,their .1)err01'lllall~: Y. °d~:n so that conceiva~ly the
f
making inquiry in relation to two hours oB' with pay on election in antugolllH~ll and a . e(~ll~~l~t\tl1Y cl~~hal'ge with proprlety the
day for bartenders, as the Attorney-General niay officially advise inet~lnhe~lt 0,1 (m; (lal1no~ . <¥~ a~~~, Green 58 N. Y. 295): .,
only the officers o:f the State. duties 01 hoth (1 eo, ?X Ie: .. Y ... -e was no incompatIbIlIty be-
For your information I herewith enclose a copy of a newspaper It has berm stated, III effeet, that th~{ lostmaster (1934 Atty-Gen.
release issued by this office on November 3, 194:4, which deals tween the] ofJhml'1:! of vill!(~~~ lJljr~r~~~( (!lerlc and postmaster (1892
generally with the provisions of Election Law § 200 (now § 22G) (111'1'.) 4H2) and the OIICCS or 0
and the complementary provisions of Penal Law § 759. A tty. (len, 110). . t 1·11COJ·lsistency between the
I note that in your letter you state that "Bartenders in this 1.' can flee no !lllme
' d ·1"ltC'ly UII!lal'en,
c .•. ,' . .".
,. ,
t which you mqmre
. ' b t
:1 you
union usually have to take the day off on election day without pay." genel'ill duties ot the pmntl011~,ahci~ not one whieh rests WIth the
You will 110te from the enclosed that the statute permits a person must app!'C\I~iute that the qU,es ,1011 • . •
entitled to its benefits "to absent himself: from any service or em- Attornev-! teueral to cletornune · . d by law to render legal advice
ployment in which he is then engaged or employed." .. v .(Ier 11'S auth orize . 1 N s-
Under Alcoholic Beverage Control Law § 106, subd. 5, it is pro- . ,..Attorne , -1
rl'ltC,' t , ts 0 f t110 8t
l ener a .
~ a .
te government h on y.. b
eceen
to officers and (epar 'men . . . 1St be considered as avmg e
vided that, sudlv therefore, the £oregomg ~n~). because of the Attorney- Gen-
"No alcoholic beverages shall be sold, offered for sale or l'en(lc~'ed inl:ol'lllal1;y and unofficlar{is not to be considered a formal
given away upon any premises licensed to sell alcoholic
\0
eral's desire to 1)(', helpful you.
opinion oC the Attornoy-Cxenera1. ..
beverages at retail for on-premises consumption, '"' >II< *
" (c) On any day of a general 01' primary election during December 5, 1949
the hours when the polls are open. «: .. *" EDWAHIl rr. Buru,:JJl, Dansville.

166 INFORMAL OPINIONS or" 'rEE AT~'ORNEy-GENEIMrJ
Er,I,m.'ION LAW, SICCTION 226-'1'lJ\rE 0]']' 1'0 VO'l'J'-I'Tr.NAT, lAW, Srw'l'lON 75!1·-
REFUSAL fro PJi;Rl\Irr El\IPJi)YEES 1'0 Arl"11J~N]) BLEC'l'ION.
W]~eI'? a,n elll)J~OJ'lJe'~ pol~jng place is so fill' fraIl! hiH pla{'o of PUll']lJ,Vl1llnlt
thut It IH huposaible for hun to gl't to the fOl'lller vote and ret l11'1l to the
latter within the period fixer] by In w, the employer is eutitlod to doduet from
the employee's wages fur !luy absence from wo rk Tn exeoss of tho hnnrs
fixed.
Your letter dated November 22,. 1949, addressed to Governor
l?ewey has been referred to me for attention, I am replying in-
formally thereto as the Attorney-General may officially advise only
the officers of the State.
INl!'ORMAL OPINIONS OF 'rUE A~"rORNEy-GENERAL 167
My investigation cloes not disclose any such legislation in this
State. Article 7 of the Religious Corporations Law provides for the
ineorporation of Baptist churches and Article 8 thereof provides
for the incorporation of Congregational or Independent churches.
In the case of Walker Memorial Ba.ptist Oh1Ll'ch, Inc. v. Sa1Lnders,
In Mise. 455, the Court held that Section 170 of Article 8 was
lim ited to Congregational and IndependeI:t chl:rches, and that
although the plaintiff. chureh was CO~Igregatrollal Ill. ch~racter (be-
eause it 'was Baptist and had no hierarchy) and IS mdependent
(because it has no subsidiary relationship to a:1Y other el:1Urch or
()'overnin<r body) it was neither a OongregatIonal nor 111 Ind.e-
I

. r~'he situation. described in your letter is governed by the pro- Jleuc1ent ... (spelied with ir~itial capital letters), as in,ch:ded ~n
visions of Election Law § 226 and Ponal Law § 759. Ai-ticle 8. I suspect that this case IS what your fellow pagto~ had 111
Assuming that the employees to whom you refer notified the mind. However, the question which yon present was not Involved
employer before the day of election of their intended absence [1'0111 in that case. '
the employment in which they were engaged for a pried of two Since it is not within the province of the Attorney-Heneral to
ho.ms while ~he 11011s of the election were open, and the employer render opinions to or advise other than .officers of the State
failed to d.esIgllute such hours, and the empl oyees absented them- eovernment you will ap]lrec'iate that the VIews expressed herem
selves during any two successive hours while the polls 01' tho ~I'e sublllitt~ci informally and unofficially in an effort to be of some
election were open, the employer was not entitled to make any de- aSHistance to you.
duction from the usual wages of such employees by reason 0 l' such
absence. December 8, 1949
,Where the emploJ~ee~' polling: places are so far f'rom their plaee nev. KENNE'l'H H. GOOD, Hamburg.
0:[ employment that It IS impossible to get to the polls, vote and 1'0·
turn to the pI ace of employment within the two hours provided
for in the statute, the employer is entitled to make deduction from B,gT,xGlOUS COItPOltA1'IONR LAW, SEC'l'ION 189-AGE OF QUALIFIED VOTER.
the employees' wages :1'01' the time 01'1' taken by the latter over
Tho phl'llRe I( A11 pl11'SOnS of full age" in Section 189 of the R.eligious Cor-
and above the period of two hours. por;ltionR r~fl~V menus l?ersolls at ~e~u\~. 21 ~c,nrs of ago. A religIOUS corpora-
. Any violations of these statutes by the employer which you be- tion may 1101'. fix ally dIfferent ql1rlhfJ rug age.
heve have ?c,curred, would h~lVe to be submitted to private (\OUl1Scl
as to th~ C1;Il remedy to which the employee may be entitled, and 'I'his will ae1mowledge receipt of your letter of ~ovember30,
to the district attorney of your county as to the criminal feature )49 ]'equesting' anOI)illion of the Attorney-General WIth referedn~e
1C
which may be involved, to, the. ". .. . of the phrase "All
meaning .. per~ons 0"f .c ruII age0 ' " as use In
Section 189 0'[ the Religious CorporatlOuS Law. " "
December 5, 1949 'I'he common usa ere 0'.[ the term "person of fun age means a
CHARLES I.J. HOACH J Heuvelton. person who has att~ined his majority" which, under the common
la~ as well as by statute in .this state, is when he ~e~ches the a;g~
of 21 years (Domestic Helat1011s I.Ja.w § 2). Ina;-r1V.mg at the 111.
tent OJ! the leo·islatu.r.e words o.. f ordinary Import I eCerve t,he unad e!
& 94) 'rl
RlilI,IGIOUS CORPORATIONS LAW-BAP'l'IS'l' CnuRc!I-NAlIm.
No statutory provision requiring Baptist Church to use words illndepon.
. ,J. . 0 ,
Htood1l1eallillg (McI<:. Statutes '3' .' ;e ~a.me. p Ilrase
,
IS use in
Pora
" d
C'ectI'oII 186 which l1rovides for the meet1llg for ll1coI an
c].ent" 01' "Pnr'ticulur", ete., as part of corporate title for church to he (JOn- .-, .. ,.. . . . . itl d t t thereat TthlOn e same
sidered not a part of the Northern Baptist Couvmitinn. fixes the qualifications of those ~lltlte. 0 vo e O ' • ti L
age qualification is fixed by SectIOn 5 of the ~tock . O!POI~~~~efo~:
You~' letter of Nove,mber 2, 1949, addressed to the Secretary for incorpOl:ators of stock corp()rnti~nsf'. ~t ~~ miS~I~:~ definitely
o~ I.Jeg·,Islat11l'e, State of New York, has b.e,en reforred today to this that the legIslature by the enactme~t 0 >.. ec lOn. least 2]
?ffice. f'o~ aclmowledgl~lent. You inquire 1'1: there IS any legislation n-ovided that persoll to be a quahfied voter must .be .at . ..
:n this St~te. to .the ~ffect that any Baptist church which does not ~ears of age and that the corporation may 110t establIsh ItS own age
include within Its title, under its articles of incorporation some
s~lch word. as "Independent" or "Particular," etc., is legally con. ;lualificat.iol~R. f the Attorney-General to
:::linee It IS 110.t wlthm the pIOVll1Ce 0 ffi ·f· the State
sidered .a pa~t (If the Northel'l~ Baptist Convention, regardless of •. . ." . , d d" others thau 0 eel'S o.
any actI~)l1 of the church to WIthdraw :from the Northerll Baptist l'elldei' OpI~110nS to 'IaJu a v~:'>:te that my views expressed herein
ConventIOn. government, you WI . apprecl

168 INFORl\IAT" OPINIONS OF 'rUE A'l"l'ORNEY-GENERAL
are submitted informally and unofficially in an effort to be of some
assistance to you.
December 8, 1949
LES'l'ERW. SAGAR, Baldwin.
DOllmS'I'W l"t,,:t.A'l'lONS LAW-SEU~I'IONS 110 AND 112-ADOl"I'ION BY NeJN-CI'l'IZIm
OF RESIDEN~' Onn.D.
A child resident of New.York Stu 1/' may be adopted by foshn'
parents who a1'O not citizens.
Your letter of December 2, ] D4H, directed to the Hall of Records,
Albany, New York, has been referred by the Albany County Clerk
to this office for acknowledgment, You inquire if a foster parent
must be a citizen for the purpose of adopting a child in this State.
Adoption,in this State is a judicial proceeding regulated by
Article VII of the Domestic Relations Law. Section 110 thereof
provides in part as follows :
"§ 110. Who mo;y adopt; effect of article
An adult unmarried person or an adult husband and his
adult wife together may adopt another person. An adult
husband or an adult 'wife may adopt the child of the other
spouse, whether born in or out of wedlock. No person shall
hereafter be adopted except in pursuance of this article."
Section 112 thereof provides in part as follows:
"§ 112. Voluntarl'y acloption
• In voluntary adoption the following requirements shall be
observed: . . and departments of the State governmenlt al~d.not )l'l~;eltt~~~~y
1. 'I'he foster parentsor parent, the :(081:er child and
persons whose consent is required by section one hundred
eleven of this article, must appear for examination before a
judge or surrogate ?~ the county where the foster parents or
pa~ent. res1~es or, If ~he £os.ter parents Or parent does 110t
reside m this state, before a Judge or surrogate 0:1: the county
where the foster child resides."
In th~ cas.e of Matter of Vol1~nta1'y Adoption of Minor, 130 Millet
793, which involved th~ .adoptIOn of, a child resident of the State
by a f?~ter father, a crttzen of the Dominion of Canada, married
to a citizen of New York, and t.he couple domiciled at 'I'oronto,
Can.ada, ~h~ Court ~el~ that Section 112, permitted such adoption.
Since It.]~ not within th~ .provmce of the Attorney-General to
render opnnons to. or adv1s~. others than officers of the State
governme,nt, y?u WIll appreciate that the views expressed herein
are. submitted informally and unofficially in an e1fort to be of some
assistance to you.
INFORMAL OPINIONS OF TIlE A.TTORNEy-GENERAL 169
If you contemplate adopting a child in this State, I suggest that
you engage the services of an attorney in this State.
December 12, 1949
A, B. PAltRY, San Francisco, California.
IlOMFJS'l'IO RgI,A'I'IONS LAW, SEC'l'ION 8-VALIDI'J'Y IN NEW YORK OF MARRIAGE
CON'rRAC'l'ED IN ANO'UrEa S'lWrE BY ONE AGAINS'l' WHOM THERE IS A JUDG·
:MNN'i' OF DIVORCE FORBIDDING REMARRIAGE WI'l'HOUT THE OOURT'S CONSENT
Ilnl'\1l1t 01'
-E~'~'EC'l'IVE RFJ:MAR.RIAGE AS CONTEMPT OF OOUR'.l'.
In spite of a prohibition containe~ ill a judgment of divorce rendel:e~ in
New York forbidding remarriage WIthout the court's consent, a marriage
eontractud in another jl1l'isdiction would be valid here l1nles~ the law~ o~ ~~e
jurisc1ictio n in which the l:el\larrill.g~ takes pl~ce,declllre It to be Im.a .
~~ue1'Y whether sueh remarriage constItntes a cll1lunal contempt of court.
I have your letter of December 2, 1949.' .
'l'he New York courts have held that a marriage contracted out-
Hhie the State is regarded as valid in t~lis Stat~, although one ?f the
parties has previously been divorced 11l the State and the. dlVo::ce
decree prohibits remarriage without the eonsent of the COUl~ which
rendered the judgment of divorce (Be(J;ud01.n v. Beat~domf. 2~0
App. Div. 631). An exception would be where the laws 0 . t. e
state in which the second marriage was contr~c.ted declared. It to
be invalid because of the existence of. the prohIbitory clausllR thke
divorce decree (Beaudoin Y. Beatldmn, susn:«; Laliocl: v. a oc ,
198 Misc. 1053). . ' 1 t' f th decree of
' It has been held that remarriage III vio a Ion o: e .
the COt~'t constitutes a criminal contempt of court, S1?tnkx v.
S . inka: 43 N. Y. S. (2d) 418. The case, however dealt ,,:th a .re·
P . ' . New Yor}r and I find no case on the subject ll1volvll1g
nlarl'lage In - ~,
a remarriage outside the State. .... . 1 fficials
Since the Attorney-General is authorIzed to advise on Y 0
this is not to be construed as a fO~ll1a Op1111on 0
an General but is informal and unofficial only:
December 12, 1949
AN'l'1IONY J. ALBNR'f, A..P.0. 696 New York.
CInT,DlIEN'S OOURT ACT, SEC'l'ION 12. , 'nate either the sheriff's office or
A judge of the chi~drcll's copr\ ~~alll~~es~~ transport a delinquent child to
the pro?ati?n 0tJflcel' ,11}1 ~h~aJ'~;Acgl~ ~ommittcd the child.
the lllstltutlOn. 0 w llC 1
. .' 1 tt . f December 1 1949, as to whether
You inquire 111 your e elpo b t' Offic~ should transport a
'ff' Office or the. tit1'0 a ion .being
' so
t h e Sh.enrts tion upon such 'juvelllle
juvenile delinquent to an I~S 'C~'ldren's Court
committed by a Judge of. t e th Irized by law 'to render legal aid
The AttOl'ney-Genera1 ~ ad o~ departments of the State govern-
and advice to officerfs ~n tl~a ~etter is not to be regarded as an
ments only. There ore, IS
170 INI~ORMAL OPINIONS OF TIm A'l"rORNEY-GlolNlmAL

official opinion but only as an unofficial and informal effort to assist

you in your problem.
Section 12 of the Children's Court Act states:
INDEX TO OPINIONS
"'X' * ~' The sheriff or any peace officer in the state shall
serve all papers, subpoenas, orders, warrants, or other process,
0.1' they may be served by any person designated by the court AhHlllltU() Hnllot: " (1) ,
and they may be served, executed and enforced by sud] offieel's CouStitllt1oll, AI'tido II, Soetiou 2; ,JmectlOn, LlIW't so~t\lUt 117 '161
. ins on hO\l(lymOOl\ IU'e not untitled to absen e~ a 0 s , ',' . " ,
or persons at any place within the state without further I,}~~lt,I;\1 LI1W HN'.tion 11.7; a qnalified voter not an mmate of ~ ve~
endorsement. ,» ,» '~.il J ~\~I:l~S hospital is not l,mtithi.d to I1n absentee ballot on the groun 157
l . t he is un invulld : · t
Consequently it would appeal' that a Judge of the Children's ' 1t l'tl, 111\\_ Hl,{,tions 1]7 118(2); c1etel'milling l'lght of appbcan
1.'J lW· ·IOU ..J ,,~. . ., ' ', • 158
Court may designate either the Sheriff's Office 01' the Probation .... to .absentee IH)}~l:to,t .. i i 7-' 'irii. 300' ~t' ~~q:;' ~b'S~;lt~~ '~dti;lg' pl'i;i-
Office in a particular case, to transport a delinquent child to the Bledloll Law, ,(,{, ions . , " , f ,. d f veteran sub-
institution to which the Judge committed the child. Ieges oi' moniher of armed rorces III tune 0 WIU all o: 148
S~quelltly 'becoming college student,., •.• ,.·······,············
December 14, 1949
Aeknowl(lllg111o ut: . . 103 General COllstl'tlctlon LlIW,
EDWIN W. I.JljJARY, County Attorney, Anbnm, I~x(\{'utivo LIlW, Bectlons 1S·01't ' 1024'4()" ;'equirCl~ents for filing certifi·
'" ,.t' It 11"l'l.'unl
,:>{,L J() .
Ln w ,ec Ion .. "
'\ ' 1 " llssumot1 name where notary pu bli1C
(\ute of .luiug IIIlS111CSS unt Ll '. '1':1\ I In County where eer-
hpfol'o whom l\(·.kuowhldgl.'cl nns not qU,1 I O( I •••• , 136
ETJEO'l'ION LAW, SEOTlON 226-'l'um AI.Lowmll :gMI'L(JYI'~I':H 'I'll VIl'I'Jo;---PlCNAI. tiflellto is to bo iile<1. ......... • .. • ...... ·· .. • ........ · ..
LAW, SEC'l'ION 759-REJ<'UHAL '1'0 PJ,mMI'l' ]ihll'LOVJo;J':S '1'0 Arl"I'NNIl l':LJolC'rlON
-LABOR LAW, AWl'. 6-PAYMEW1' OP WAGJi:H, Al'.ljuiHitioJl of La llt1: . l' vOl'd "Bo'ml" inconuection
Claims 1'0]' wages withheld because of employees 1l1lHl.'lItillg themselves 1'01' Public Health IJl\w, S!le~ioll 10,(6) ;1 use? • 'sion of 'the Rcswell Park
the purpose of voting lire reeoveruhle by civil suit through privute counsel, with llllquisit;ion of lands :fOl' t ie expan . , ... 159
Memorial IIoRJ.lital ••..•.....•• , .. / .•....•...... , .•.....
it being doubtful whether the Counuisaiouer of Lul.or IlIHy inulntuin such
action WhOl'O such claims are assigned to him,
Acting PoJi(~e J'ustlce : (seo Pollee J'nstlce)
I am replying informally to your letter of December 7, 1949, as
the Attorney-General may officially advise only the officers of the "A(l,!O[,in": 'r W· Sc'cl;ion '[o (1)' use of the. wortl "adjoin" relatlng' to op- 32
State. . , 011'11 JII I .. ,.' . ....,'. l' t \VJlS .. , .. , , ..... , •. , , .
tionnl dlllIlgl'H ill dllsHl(llmtlO11 0 0 ' •, , , •,
'I'he failure of the employer to comply with the provisions of
fanner section 200, now section 22(i, 01' the Election Law by Adoptioll: '. 110 id 11<)' 1I child rosidont of
neglecting. to pay his employees who have «omplled with the ])Ol11ostit\ H(·ltltionR IJllW, SeetlOll,s f t .• ~l mr~lrl' 01' parents who are
requirements of the statute on their part, results ill the employee this Ht:at(\ may 11(\ a<!ojltl.'il bJ .os L1 I . ,., , , ., , ..•.•. , .,. 168
not citizens •••...... , •• , .•.• , .•• , ••... ,'
having' the right to maintain an action against the employer for
the wages withheld. (See Lee ei at. v. Ideal etc.., Municipal Court, Adver!:ismneutH:. n rnv , t £ unnuthorizecl ucwspaper adver
N, Y., New York Law Joumal, Dee, 21, 1949, page 1.) It is at I'lhwtioll Law, Sl.t'.t:l~1l\ 0.\ (3) : e,os ,~ . not a propel' connty clHlrge., 97
least doubtful whether eluims of this character are reeoverable at (,iselllcnts by olectiun COlUUUSSIOllClS IS
the snit 01' the Commissioner of Labor under the provisions 0:1:
Article 6 of the Labor Law. I would suggest that you consult AgI'i('\lHul'l' ani! :Ml\l'lwtH 1Al\V: I I 'II Sl'1tc oxceptill City of
). l' ISO is vali( unyw \(11'0 J ",..' 116
HPl\tioll lOll i (og ICI)l , t. Ii'ceuse must be obtained ......• ; ,. ,
private counsel as to the enforcement of these wnw' claims by civil New York, where II sepulH e
action.
Penal Law § TGD provides that an employer who subje('ts his All'.(llJOlic, neVlll'agC\ Control LIlW: ' d to be aid f~]' time off to vote 164
employee to a reduction of wages becauHc of til(' latt('j"s excreise Scotion 100 (5) ; l)l\rt,olHl~]' llOt,?t;~~I~)OI11'dS h~ vill~ges in Westchest~r
of the privileges conferred by Election Law § 22(j, is guilty of a l':!t.('tiOll ] ~H; llwmllels oJ. lllUltlCj, ll'\1lufacturo or salo of alcoholIc
'('lounty lnny not he intol'os 'e In 1 , ., .' •.. , , . , . , , " , , , ., .: ' , . , 27
misdemeanor, If enforcement of this e!'iminal liability against the hovoragoH .",.,.,., .. ",., .. ,. 't' 'lJC indireetly or directly lUter-
employer in question is desired, yOIl I:;honl<1 (wnsnlt the district ,
S(I(',tIOn 1" n,
.... 'JIIlgC \'I'lIHtees
u , VI. ..' •may no
'I'll 'es . ." . .'.. , .. , ... ,., ... ,. 29
attorney of your county. ested in tlw sllie ,of Illcoh~lI~ b?vep1,Ynti;lg ballots for voting upon 156
Slwtioll l,n, sul)(l, ;\;, l1roce me l1\ •• , .' •••• , ., ., •• , • " , , , • ,.
loen} optioJl questIOns•.. ,.,,·,·,·,'
Decemoer 2D, ID49
INTERNA'l'IONAL ASSOOIA'l'ION 01" MAomNlH~rR, Sit1ncy. 171
 INDEX 173
172 INDEX
BOHrc1 of Appeals: . '
Aliens: Village I,ll 1'1', Sc)(',tiol1 170-h j ml\llll~r ill which CIUlIl'llIllll of VIllage
Oonstitution, Article 2, Section 1, Election Law, Sections 168, 169; board of appeals should be deslgnateel .. , ··,···,··· 92
fllien woman who acquired citizenship by marrying U. S. dUzen in
1921 before attaining her majority, must produce Htoraey certificate
Boml Issul's: , ' if
in order to be entitled to vote , , ......••..• 155 Local l~ilmnc',e Lliw, S()ctic~n 35,00, Town Law, Sed.lOll 84; qUltlll{'ll'
Norwegian Consulate General llU1Y take deposltlous ill (:his country of tionA of: vnters on bond Issues, , .., , .... ' . , . , , ... , , ... , . , , , , , ... , 20
Norwegian subjects for use in Norwegian Courta ........•..... 141
Right of foreign governments to acqulrc, hold !LI1l] c]iSlH)HO or real
property in New York State , .. " ...• , .. , ....••..••. 141 Buri:tl: "
Chmel'al Munidplll Law, Seetiou 148; Intual alloW!lnce for 11 veteran 57
1I0t ufl'ectec] by lifo msuraucc. , ..... , . , . , .. , , , ... , ... , . , , . , ... ,
Annoxation of Terri tory:
Vi1lage Law, Sections 56, 139, 3'18(4); proposition to annex tC'J'l'itory
to village may 01' may not be submitted to tho electors of the village 19 Call Virmn(!U: , t
lTllmnllloYIlU1nt Insurunec LI1W, Se,e',lioll 522; right of call ill'emen 0 58
Appeal: nnompioymont illsurlLllco belleflts .... , ... ,.····················
Code of Criminal Procedure, Section 6; 'I'Itle III, Part V j villago
cannot be substituted in place or People of State of Now York on Celllotol'ies: " ' d t ,'d' tl e
appeal from conviction for violation of local speeding ordlnnnao, ']' 1 '111'V "'C'C,t'll/1l 2C)]' ltll]ll'olll'i:ttion of town rUIl H 0 III III l
,OWl',"'"
, ' nnd nl'dlltmullwe ,,'of: a "prlvately owned ceme.ely.".,.,,',···,
' '., 37
Appeal should be handled by District Attorney, ...••....••.••.• 162
County Law, Sections 200, 203; Code of Criminal Procedure, Suctions , ctu o l~lll'" ~C'C't'IOll 'I!)] (]). tOWl,l funds may properly be expended
'1own -" '" 0 " ~ ...... , '
to mne for an abandoned public cemetOl'y~ ... , . , . , .• , ..... , , .. 67
759, 761, 762 j District Attorney is proper official to handle uppcal
from conviction in Police J'ustlee Court of Lockport, for violation
of local ordinance .............••....••..•.•.... ,............ 163 UllrtiJicllt:e of S, eurl',h: " L S iction 2H4
t I S tions 70 and 70-b Lion aw, e "
Personul Proper'y" ~aw" oe.I.r: ' £1' t' 1 ~ales contract 01' chattel
Arrest:
Village Law, Sections 93, 3S8, Code of Crlnilnul Procedure, Soc\!:ion fOO, for fllUylg l,lfS,Slgtl.JollnlOntf °Sl;ll~~l~ ~ylOtl~ellltone docs not constitute
1Il0I'tg:igl~, 01'1 lell ,I 0 •• . . , . , •••••••••••••• 105
154; member of 'I'own Pollee Force may arrcst a person in a village certHicllte of search, .... ,.,.·····,··,·· • ,
within the town for violation of village ordinance............... 68
CC)l'tiflc',aLion: , , C 6 subd 2' al'rllllgc11l0u1: of local
Assessor:
Town Law, Sections 21, 21-a; powers nnd duties of (Jlc!et:i\'ll aASOSSOl' :mIoctiOll I'IlW, ScetlOJl8 70, 250, 2 f'
r't' i~ 'within discretion of
Cluostiolls 8nlnni~t()cl to voters 0 a :1.::.•.•.. '. ...• , . , , ..•... " 147
in town of the second class-necessity of appointment of bonrd of Bourd of EleetlOllS.,.,·.,········,· ,
review •.. , ... , .....•. ,.,., .. , ..... , ..•. ,'.. , ...•..•.•. , •... " '18
Assignment: ChiLl1eugO AfflduYit:, " l ) ' , ] • Ins lectors of election shall not

Personal Proporty Law, Sections 70 lind 70-]), Lien Law, Sedion 234; l!1leetioll IJllW, Sectwlls 111, 1!~i 3i~g" to']imswer any question upon
fee for filing assignment of condltional sales contmet or ehuttel registor nume o~ persoll le u s , , .... , .. , , .. , .•.• , ..•. 156
challengo afflduvlt , .•...•• , .
mortgage, Verification of sonrch by telephone does not eouatltute
certifleate of sOl\rch,.,., .. , .. ", •.. , .. , •. , •......••.•• ,.,.... 105
Change of Namo:. ',I of name of fire c1istl'ict which
Ballot: 'l'own t.aw, SlIotlOlUl 170, 173, c 1011ge •.. , , .•.. , .. ,.... . •.... 75
Election Law; no legal objoctlon to determlno order of uumns Oil has been extended ••. ,.················
ballot hy lot, ,.,."., ,.", ...•...... ,.......... 24
Election Law, Section 2(5), Sections 83, 87, 90, 103 (l,2); 0l'c10r ill ChnJ'itablo Corporations: ti 27 Personal Property Law,
M01Ubel'sltip Corjlorntions Lrnv Sec ~ontion' I I l' investment of fuuc]s
which llames of candidates should rippeal' upon bullota .. , .... , . . •• 12
Election I"Hw, Sections 70, 250, 26(J, sub, 2; arrungomeut of local
1
Sec\tion 21, Deecclent lTISt:ltO ; JliW, ,~~ ,'in' any tloubt:flll case a
questions submitted to voters of Ii city is within dtseretlon of of C1hlil'itnble MCl11l1>ersllljl OorpoIU 1011 IS • , •••••• , ., ••••• , .132·133
BOllrc} of EJections , , "., .....•.•.•..•..• , ••.•• 147 question for tho court, .... ··,·,··,·,,···
Election Law, Sectiona 241, 248, suhd. 1, 261, 206, suhd, 2, Alcoholic
Beverage Contr.ol Law, Section H~, subd, 3.; procedure in printing Charter (City of Gloversville) :, I 1899 Chullter 275 as amende c];
ballots :Fol' votlllg IIpon local optlOn questlOl1s.•.•..•.....•.•••• 156 1
OOllllty,llW, S CO' t'1on 174.. (3
C1 ) \ Jaws.·,
f l' filing ccrtiJicates of' Slle1 0 f Illnds
:rcws of ]'ultou Coul~tt'y f er uupoaid taxes , .. , . , ; ; 65
Buptist Church: solc] by 01' to the Cl y 01'
No stntntory provision requiring Bnptist Church to use ttludopen·
'c]ent" 01' "Particular" etc" as pal't of corporate l;itle for church to Chul't:C'l' (City of Ithllcn) : : on lliay occupy the offices
be considereel not a pal't of the Northern Baptist Convention ..•.•166 (La \VB lUOR, CIllLptel' ,50 B) ; ~lOU:~:~~/~~ Bthe bOllrd of 'public works 71
Beaver Dams: crr dty ward superv1s0r an, I •••••••••••••••••••••

Oonservation Law, Section 191" subcl. 2 j heaver clo,m may ho re- of the city at the same tlme., ... ,,·····
movec] all,c} beavers removed 01' c1estroyec] only l)y pormissioJ) of
OOllservabon Depal'tmellt .•......• " •.. , ..•..•.•......•• , • • .. 181 Char tel' (City of Lockport):. 1 £ C 'iminal Procedure, Sections
Billiarc] Parlors: County TJaW, sect~~~l~ ~O~'lt~~;n~~\~ ~rop~r official to 11llu£1le, at~:lll
Penal Law, Section 2145; Town I,aw, Sedion 130; town boarel with· 759, 76l, ~(J~; ,1S ~r;c I' Justice Comt of LiokJlort, for Vl0 a 10n 163
from eonvlctloll III .J: 0 Ice , . , . . . . . . . •. . . . . . . . ••. . . .
~ut autllOl'ity to enact ordinances permitting' the oporntiol1 of hil· of local ordinance ••...•. ····,···,···
hard parlors on Sunday ... , •... , •. , , , .•. , •. , ..•.. , ...•.. , . , . •. 61
 174 INDEX
Chattel Mortgugu:
Personal Property Law, Sections 70 and 70-b) Lien Lnw, Seetion 2:14.
fee for filing assignment of eondltiounl suloa l'outl'not 01' c'hatter
mor~gage, Veriflcation of seureh by telephone does not c'(Iustitute
certificate of search""."""", .. , •......•.••..••..... , ..•• 105
Chief of Police:
Chief of police not dlsquullflcd from pl.rforllliug rlUHOR at villago
election because he nttcnded and served ftS SCH'l'C'tnl'y at IlIl'otiugs
at which nomlnntlons 11'01'0 made 01' is rolutcd by mal'l'iage to eunrll-
dates .".,., .... , .••... "",., .• " .. "., .....•... ,,., .••• ,.. 24
Chilcll'en's Court Act:
Arti'cles I to 'I, inclusive; ju<1ge of Ohiklrnu'a (lolll\t hnR no )lower to
commit a, child to IL Stnte he~pital for obaervatiou IlS to insllnity
unless clnll1 IS a wayward lIunor.", •...•.. , ....•• , •.• , .. ,.... 144
Section 12; judge of Chlldrou's COUl't Illlt,Y dnsiguato oithl))' shol'iJl"s
office 01' the probation office to trnnspnrt delinquent ehild to instl-
tution to which committed •• " •. , .•..• , •• ,................... 169
Civil Practice Act:
Sections 1077-a, ].077-g; foreclosure of mor(:gagos dated prior to -Iuly
1, 1932 fo~' default in payment o.f prlneipul snsponded for omor-
gency period , ..• ,.,., ... , •.. , .••• ",................. • • • • •• 139
Section 15?4,; right of eounty clerk to e1large It rlH\Ol'CUng' foe for
reproducing by photo copying extraneous mattcr appended to docu-
ment to be recorded. ..... ",., ..... , ...••.••.........•...•• , 140
Civil Rights:
Election Law, Section 152, Civil Bervlco Law, Snction 1.'1, Penal Law
Sections 2380-2383, Code of. Oriminal Procuduro, SlH~ti()ns Rl't.8~1(l'
effect of dishonorable discharge from firmed forces on elvil rights.: 135
Civil Service Law:
See~i?n ~4; effect of dishonorable discharge from nrmod forces Oil
CIVIl rlghts ,., , " •......... ,.......... 135
S9ctio11 22(1); employee subject to removal only upon churgcs and
af,ter It heari,ng ha,s right t? l)e represented ily counsel. .......•. 127
Boctlon 32;, retired VIllage poltcomari may serve as mayor of village
and ,recClve salary thereof without loss of retirement peuslon in'
annuity .,', ' , .. " ,.,." .. " ", ,..... 30
Sections 32, 84(£); pension of l'etired villago policeman, lllnst 1)(1 Sll'S:
pended while he is employed as special village polieemall. • • • • • • .• 77
Clinic:
Social Welfare Law, Section 460,2; use of tOl'lUS "(lispOllSal'y" anll
"cHnie" by private group of physicians,., ....••••• , ..••••••• ,. 118
Code of Criminal Proce<1ul'e:
Section 6; 'l'itle III, Part V; v.i!lage ClL!lllOt he snhstitutorI in ll hWO
of. Po.ople ,of Stu.to oi'. New .York on appl11l1El'oll\ eonvieticmfor
vl,ola~lOn of locnl speodlllg Ol'lllll!lllCe, ApPllni shoul(lbo lllmcllod by
D~stl'lct Attorncy .. ,"', .. " .. " .• " •. "., .•••••...•.•.. , ••• 1(J2
SectlOlls, liD, 726, 7'27) 73S, 7:Hl, HO-n, 740-h j tl'llnspol'tation of pOl'sons
eO!1l!11ltt,ed to. connty j!lil by a ;justieo of the peu.l'o 1'01' ofl'OUHos
[ll'lSl1lg III [~ ,?lIu!!,o whi?h hus UO puli(,.o ,just!e.(', l'c\HtH upon the oHlcCll'S
of the pllll1lcqJHltty eu1:Jtlod to tho liuo, pOllalty, etc. fol' tllll ofT(JIlHl!S
for whwh the ll0l'SOIl is churg'l'il, . , . , , .•• , ..•.. , • • • . . . . • . . • • • • • . 33
Soc!:i.OIl 154) l~l'l1lb(!l' of ~['own Po!ie.e POl'Nl llll~y n1')'('Ht Il P(!I'Sllll ill a
vI~lage wlthlll the towu 1'01' violation of villago ol'lliultnco........ 68
Sectl(~ns 154, 156;. constable's ,iurisdil·tiou in dvil lllllltl!I'S l'OVel'S
entH'e eoullty, Hc may mrdw arrest u1JOJl Wal'l'll1lt of' justic'(l of the
peace anywhere within their county, ... , .....•..•. , ••..•• ,.... 100
INDEX 175
S('c·tiolls 6lill, (WO, 661, (\62-e, 870, 913-a to 913-<1 inclusive; ju<1ge of
Chlldrcu's Court has no power to commit !1 child to a State hospltal
for OhSl!rvutioll as to insanity unless child is a wayward minor .. 144
Spctions 700, 7/11, 7li2 j Distrlet Attorney is proper oflieial to handle
a).lpea,l from lWnvil\tio~l in Pollee Justic Oourt of Lockport, fol'
VIOlation of local ordiuancc ,.,.,.,.,., , 163
SoetiO!lS 814-82(J j efflll',1; of diahonnralik, discharge fl'om armed forces
on civil rights .•. , •.••..•.•. , •. , .. " ..•...•.••••..••.....•.. 135
COInmiHSiol!prR of Deeds :
J~x(H'utiveLnw, Beetlona 102, lOli-a; authonticatlon of signature of
notury publle or commissioner of deeds by County Clerk,., ....• 133
COlllmission!'r oE J'lll'd.ion:
J'J10(.tiOll Luw, SlJl,tlons Hi 111111 :n j cortiflentc of appointment of elce-
tion conuulasloucr must 1'l1ilect llllljority opinion of county committee 114
(lomm! tmeut:
Ohildron's Court Allt, ArtideR 1 to 4 inclusive] COlle of Crin~inal ~l'O­
l',l1chll'o) Stwt!ons 1I5n, (HlO, eei, li62-e, R70, 913-a to ~13.d l1~cluslVe;
judgo of Chlltlren's Cnurt has no power to commit a child to a
Btnto hoapital for ohaorvution 1.18 to insanity unless child is a
wayward minor ......••..•.....•. , ...•... , .. ,., , . 144
Coudltiunul f'1I1Ies Ccmtrn~t:
Pcraounl I'1'olll'rty Ln w, Sect:!ons 70 n,lI~1 70-b; Llen Law, Section 234;
j'('(l fol' filing llHsignmont of conditionnl sales contract or ch~ttel
mortgug». Vl'l+fil'utioll of search lJJ telephone docs not constitute
(\(lrtillcntll of search ..••.•....... ,." ··.··.··",········ 105
(1outJ'lI('{:H for «unrllttonnl sale of goods lljfixe(~ 01' to be, aJ1ixe<1, to
rel1ltJ' are not liens and may 1I0t bo indexed III II consolidated lien
index .•.....••. , " ..•.•.. , .. , , , 153
COllsorvutiou'J,nw:
SI!C'tion O(l; COllservn tlon Department may allow Oanisius College ~~
have rl'pJim made of l<'athor .10gues Monument at Lake George If
sculptor usslgns (\oVyright to people of State of New Yo!k •. , .•• 151
Boctiou 1lil, subd. is, Section 104; Section 956; conse:vlltIOn. com-
mlasion hna discrotiolll~rY power to settle and eompronuse actiona; , 117
S(let!ou 11l0, Buhcl. n j no rovivnl by Chapter 641,.J;,aws of,1948 of
exemptioll from liconso for fishing by women cltI~en resIdents,:, 115
AI'(~ti()1l 191, sul,<1. 2; hllllvcr (lam .m~y bo removed ~nd beavers Ie-
nIovOll or <lostroyed only by permlsBlon o.f ConservatlOll Department 131
S(.~tion OliO' ('h'l! ('ompJ'on1Ise of conservatIOn penalty may be entered
into 011 ~ SuU<lll.y or holiday •••.•.•.•••• , ..•. , ..•....•• ,., .. 120
Constable: . '
J'usti('e Court Ac\t Se(\tioJl 80; Code of Criminul Proce<1me, Sec,tl~ns
1.0 1.t, :L50 j (\onstnhle's jurts<1ictioll in civil 1l1ll;ttel:s covers en:11'e
('.Ollllt~ •• He 111I1Y mllko I1rl'est upon wrtl'1'l1nt of JustIce of the peace
lluywiwro within county ..•.•• , •. , ..... , .••.. ,., ... , ...••... , 160
ConstitutiOll: , , .
Al'tielo II Slwtioll 1 j alicn WOlllltll who ueq?i!'od cltlzensh~p ,~y m8.n Y
ing U.' S. (!itizell in 1021. before attal11mg, her maJollty, mus t
>roduce litcracy certificate in order to be entItled 1:? vote.,' • , •.. " 155
AAiclc II, lilllCt!OIl 1; l'cquil'e~nellt of fOll! mont~ls r~sldonce III or~~l
to ljuuUfy for voting is satIsfied by reSIdence m elthcr county, el y
or village ••.•.•••.•.•.•.•••...•.. ,., ..• , ••...• "••..•••.•..• 158
Article II Sl1ction 2; pel'solls on honeymoon are not entltled to absen-
- tee lmlJota •••.••.•••••• , .. , ••.. ".,.,." .. , •..•• , ••••••••.•. 161
176 INDEX INDEX 177
Oonstitution: Heetillli 17·\; right. of ('uullty elerlc to charge a recording fee for
Articlo XIII, Section 12 j roduetlon in snlary,of. justice of. tho peueo l'epro<!ul'ing by photo copying' extraneous matter appended to docu-
because of inability to serve .,., .. ,."" ,., ..•...• ,..... ill rnuut to btl rucordcd . .. ,., ,., , .. , ,., 140
Article XIII, Section 12 j salary of county clerk not to he inereuaed HOCltioli 17·~(il); fens o:l'I"UltOll County Clerk Ior flllng eertrticntcs
during' term of office .".,.,.,., ,., , ••..• " .•.... " 7 of sale of lllll<1s aold by or to the city for. unpaid taxes.,...... 65
Htw:t;iolls :.JOO tHl:1 i DiHITiet AtIOJ'nO;l' is propel' official to handle
Consulate General: n pponl :('l'l,'1ll ,'ollvit"tiOl! in Pollee ,Justice Court of Lockport, for
Norwegian Consulate General mny take depositions in this eouutry 'violntion of local ordinuuce ,." "" .. ,.,., , .. ,. 163
of Norwegian subjects for usc in Norwegian COUl'tS ..• , •.•••... 141
llel't'<lont Estato Law:
Contracts : S(,(,tion 111: iuwStlllOllt of tunds of Oharitaule Membership Cor-
General City Law, Section B; Penal LII 11', St)lltioll HHIR j toj t:y oflleiul pO;'l1tioll is in allJ' doubtful case a question for the court ..... ,132·133
may not be employed by tho city as It craf'teinuu 01' laborer on It
pOl' diem basis .... , ... ,.,., .. , .... , .••... , ..•..... , .•.• ,.,. 61
General Municipal Law, Section- 20flD j village may t'ontrlt(jt: :POI' Dupoai tiOllS: , ' . .
outside services of its volunteer lirc dcpnrtmont , , , ,., •. , , , , , .. , . !O No rwogiau Consulate Gonel'nl mny take depusltious III this country
of Norwegian subjects 1'01' use in Norwegian Courts 141
Penal Law, Section 18<jS, .l!Jdueatlon Law, Sedion 1617 i intel't1st or.
public oflkol's in eontracts with political aubdlvisioua of which they
al'O officers .",.", .. , .. , .... , ... " ....•.. , •...... ,......... 79 Dupnty Town Comptroller:
Public Works Law, Section 15 j municipnlity may not ci l' eum vent Town Law, Section il4; no nuthcilty for the appointment of deputy
town eomptroller ,.,.", ,., , , , . 25
provisious of. law relating' to the letting of contruets ill excess Ire
$2,500 •..... ,., "" ,., , ..•...•. ,.............. 87
'I'own Law, Section lS~I, j amount of proposed contruct 1:01' th-o pro- 1h'signating Petitions:
tection should be set out in notice of hoaring thereon, . • . . .• • . . . 86 l<Jleetion Law, 8tw,tionUJ,6 (2); ~n coun~:J: having between ,25,000, ~nd
Town Law, Section 184; right of town board to contrlwt for fire 250,000 population a designatlllg potitlou need not beai the signa-
protection on ·behal:f' of a Iil'C protcetlon distriet., •... , , '. 5B turos of· lIlorc than 500 enrolled voters" , , ···•··· 150
Village Law, section 80 (H), 3n2 j Penal Law, seetlon 1H6,'l j rlosigllll'
tion of official newspaper 0'1: village by heard o:l~ trustees of' which Dosig'nations: . . -. , t l ' ht t :I ig.
village officer is t\ stoekholder. •... , •.........• , ..•...••... , . , • . BO linoetioll Law, Sections 1B7 and 139; Iintltatlcn on ie rIg . 0, c es f
Vlllagc Law, Section 89(2'1); village board o.j' trusteos mny onto!' JH1tO 01' nominate party clllulit1ntos-acceptance 01' clecllllatlOn 0
designation 01' nomination .•...... ,., ...........•.... , . 77
into contract for fire protection with flro depnrtmenb ..•.... , . , . , '1
Village Law, Section 1132, Penal Law, Hel'tioll IH6,~; I' rilltl'llr·ts ])(1.
tween village and police justice arc void,.,., ••.• ,............ 108 Dlshono rable Discharge: . I
Oounty O101'k:
County clerk in county having h),sS thnn 500,000 pnpulutlon not all-
, c.·.'' ,.
r,,(l(' ,lono "
0 °
Fllcetion Law s()(\tion 152, Oivil Service Law, SectlOn 14! Penal Law,
2JS· 'wi)"
'J"S'l COtI"
• ~
of, Oriminal Procedure, Sectlons• '1814-826,
eff~ct of dishonorable discharge fl'om armed forces on CIY! ng s
.' ht 135
thorized to make now conanlidated Index of Ilotief's 01' lien :(1lt'lI
and indexed prior to effective date of sec. 172·a,. County Law. • •• 153 Dischnrge of Mortgage: . . f di h I' of
County Law, Section 12(5); Constdtution, Article XIll, Hoetion12; Heal Proportv JAlW, Section 321, sulJd, 3 j certl~ca: 0 IS~~rf:age 126
salary of county clerk not to be iucrensod during' term of (I'mC'('.. 7 t e should not purport to dIscharge more ~n one .
County Law, section 174, Civil Prlll'.tie,e. AM,. fWlltioll .1ii(j'~i rig'lIt of mol' gag 1 S t ' . .'\21' instrument purpol'tmg to discharge
eoun~y clerk to eharg'l) a recording: f'ee '1'01' reproduelng; by photo
COpylllg oxtrancous matter appended to document to be l'ecol'c10cl,. 140 nC~~O~'~~~~erntlthso~o~:~
requll'cm, ,.
:'l;~t:re~~~~;~~.~~~~
.. ,
;'~~~~~il oi; ~~~~ ~~~o\,t~~~l~h~~i~. 123
Executive Law, seetioua 102, lOll-a; llutll(\ntientillll u·!' ~i/.\'lIature 0:1' not be mfll:l<etl "clisehorged" ., , ..•.... , .. , .
notal'y public 01' commissioner 0:1' deer1s by County Clerk •• , ••.• , 1:l:l
County Oomlllittee: DispCllS!ll'y: . . 469.2,' usc of terms "clispensary" amI
Ele~tion Law 1 ~octi()lIs 15 and iJl; l~t'l'tiJh\l{t() o:f' uppoil1tllllmt of I'hm. Social Welfarc I~nw, SeetlOn 118
"clinic" by prIvate group of physicians, ..•.. ; .• ··,······,····
t;J~m comnnSSIOller must r()fioct mujodt~' opinion of l'ountv (Will.
Imttee .. , .. , ... ,., ••. , .. ,." ..•. ,., ... ,., ..... , •. , ... :., .... 114
.Dilltric·,t Attorne!:. , " , . . . Title III Part V; village
Count,Y Firo rrl'aining Schools: Codtl of· Ol'lllUllllI 'pro{\ed~lIe, l~eet{T ~~o Ie of St~te of New York
Exermtivo Law, .Al'ti,cl~) 1..8; IH!l'SOJI.s OlllpIOY.(l<1 1I1l. purt thno. iJIS('I'Ul'tUI'S {',annot he substitute(l. m. P '{fcc. 0..'01' t'~n of local speeding ordi-
at county nre trn1ll111g sf,hools 1(1'0 Stllt() ClUp!oyt'l'S dUl'iJlg' ti!IW 01' , .. .. ·l from conYll'.tlOll ..01 VI a I . . 162
011 ,{ppca. b I 11 d by Distl'ict Attorney .•...... ·· .
such employment ., .... , .. " .... ".", .....• , •• , .. , ••. ,...... 122 nance~ Appeal s~lOuld e ~O~c. eCode of Cl'iminal Pr?cedul'o, See-
County Law, SC\(1.tl0,nS 3j1,o't" " ,t Attorney is proper offimal to llanrlle
COU1lt,)' J"aw: tions 759, 761, 76~ i. lS:I1Cp i" Justice Court of Lockport, for
Section 12 (5) j SltlalT of' cuunt.y t'lerk Jlut to IJe iUl\I'(\!lHC'1l d.U1'illg' appeal :r.l'OlIl e011vletlO.u 111 0 ICC .. , , .. , . , 163
{'crla of office .. ,., ,.,., .. "...... . .. 7 . violation of local 01'(h110nCe , " .
Sectio]~ 12 (50A) ; . right of: fOUIll:y to !(eeopt g:ift t;)' 'J;<: 'I;~c;d • ;I~
, lJ~hhc ]lurk and museum .. , ..... , .. , .. , .....••. ,., .. ,.,...... 7 DivOl'ee: S Ct' 8' vali<lity of marriage controctec1
Sectl?ll 172·aj eOlll1~y elerk in county hnvillg' 'loss thun 500,000 IIO)lu,
latl~n IIOt authol'lzecl to make new cOllsolirlnte<l index 0·1' 1I0tices
Domest.ic Helationll J"~w, d
LO,n t ' whose l'emarl'iage is prohihited
outside state by dlVoree ~'lry . . , ..•..•.• 169
of hen filed and indexed prior to effeetive date of tho abovo law •• 153 without consent of: the cour· ..... ·,·······,·
178 INDEX
INDEX 179
Sections 70, 250, 26G, subd. 2; arrangement of local questions sub-
Dogs: mitted to voters of a city is within discretion of Board of Elec-
Agriculture and Markets Law, Section 109; dog license is valid tions ,., .. _ , , 147
anywhere in State except in City of Now York, where a separate Section 93 (3); cost of unauthorized newspaper advertisements by
license must be obtained •........ 110 0 • • • • • • • • • • • • • • • • • • • • • • • • ••
eleetion commissioners is not a proper county charge............ 97
Section 117; a qualified voter not an inmate of a veterans ho~pital
Domestic Relations Law: is not entitled to an absentee ballot on the ground that he IS an
Sections 110 and 112; a child resident of this Stato may Iio adoptod invalid , , .. , 0 ••••••••••••••••• 157 0 • , • , ••••••

by foster parent or parents who are not citizens •...•••••••.•.. , 168 Section 117 (1); po1'SOn8 on honeymoon are not entitled to absentee 1 1
Sectioll 8; validity of marriage contruetsd outside State hy divorced ballots 0 •••• , ••• 0' •••••••••••• , 6 • • • • • •••• •• •• • • ••• • ••

party whose remarriage is prohibited without consent of the court 169 Sections 117, 118(2); determining right of applicant to absentee
ballot 0 ••••••••••••••• , ••••• , ••••••• , ••• 158 , •••• •••••• _ ••••••••

Dumping: Sec.tions 117, 151, 300 et seq.; absentee voting privileges of member
'I'own Law, Section 130(6), 133, 135; town board may enact ordl- of armed forces in timo of war and of veteran subsequently be-
nance regulating and prohibiting dumping in the town.......... 72 coming college student ..•......•..•........... : ~ , .. , 148
Sections laG-a, 143; Iimitations on the right to deslgnate and nom-
Education Law: inate party canc]iclates , , 180 ••••• 0 , , ••• , • , , , , • • ••

Article 9; r.ight of school <listricts to rent unused sehool house to Section 13G(2); in county having between 25,000 and 2,50,000 popu-
town for recreational purposes •........••......•.•••••.••..•• 59 lation u clesignating petition need not bear the. SIgnatures of
Sections 144, 147; public records may not be destroyed in nbsenee more than 500 enrolled voters ......•..........., ... 150 0 • • • • • • • ••

of specific statutory authority .•................•...••.......• 137 Sections 137 and 139; Iimitation 011 the righ~ to. designate ?r n~m­
Seetions 253, 262; member of town board uoed not be lULIlWd and mate party eandic1atos-aceeptance 01' declination of dasiguation 77
cannot be compelled to serve upon hoard of trustees o:f free nsso- 01' nomination , .. , .....• - , •......: .
elation library/ 0 • 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• 102 Sections 137 U6' limitation on the right to dcsignate, or nO,mm~te
Section 255; proposition to establish u puhlie l iln-nry muy properly I~arty call~1idat~s-spec:ial provisions affecting unoffiCIal pnmanes ,4
he submitted to the electors at village election ..•....•.• , ..... , 9 in cities towns and VIllage euucnses .... 2
UO;
0 , ••••••• , •• 0 , , : ••• , • •

Section 261; all moneys received by a municipal public lihl'al'y ahould Sectiolls 139, 314(9) j nominatiou of candidate for public ooffice
be in the custody of the treasurer of tho munieipality. • . . . . . . . .. 78 who is not an enrolled member of I!art:f mnldug 110mmatlOn-
Section 1617; interest of public officers hi contracts with political :failure to file acceptance of. such no~matl~n ......• : .. ',' : . . • . . . . 84
subdivisions of which they are officers.. ,..................... 79 Section 143'· provisions affecting unofficial pl'lmal'les III CIties, town 21
Section 18M, suhd. 6; schoolhouse may be sold by a common school " and viil~ge cmleuses-eligibility to office ..... '::', ... ,' ',: .... , .
distl'iet included in a central school district................... 106
Section 2012; residents of federal housing' project may vote at eon- S ee,t'ions. 143 144' time and place for :filing pehtlons for mel.epen-
., , , ffi t I fill 1 at annual VIllage
dent nominations for VIllage 0 ces, o)e ec 38
tra] school district election .,." , ,...............
Bectiona 2102, 2103; right of assessor to serve as member of 136111'([
4:\
elections " ,··················,···:····0' it' 0 t'
Secti~n 150' Boare] of Election inspectors. lll,ay detern11l~ pg 1 1.
of Education at the same time .. , , , •.. , ..•....... , . . .• 2tl vote from' family home of person voluntarily separate rom 11S 149
Section 2112(3); member of board of educntlon muv be candi- wife but furnishing support " .. 0 • " •••••• : ••••• ',' •••••• i
date for office of supervlsor, if elected, hOWOVGl' silOuld l'esign Section 150' requirement of foul' months reSIdence ll1 order to'tqua.
office as board member ..........•.. ,........................ 85
ify for v~ting is satisfiee] 11y residence in ~it~l.e~·. ~~~~~:'•. ~l. :'. ~~ 158
Election: village ....•....••... '..• ober rna . ,not . claim place· of business
0

Village Law, Section 51, GRn.-; village officials may sm-vo !IS ill. sections'd 150, 33 ,etvost~~g" pYurposes {vhen he hnbitually resides at
specters of election and secure signatures to nominatlng pntltlons 2'1
t,;
as resi ence f.0.or .. 129
nether place ..•.•............................. d 0 •• '0' ••••• '0

a .d t 'f this State entering federal serVlce OutSI e

Election Law: Section 151; restllen ~: resielence solely because of. his absence in-
State does nO ose IS 161 0 0 ••••• ,

Article 14; procedure f'or the invalidation of uomluutlng petitions ll4

No legal objection to determine order of names on ballot hy lot. . .. 2'1 ci~ent ~o. such. e~n}~~or:~f\l~dti~~~' F~ei~r~i' ~mployee
by' residiug
Sections 2(5), 83, 87, flO, 103(1,2); order ill which names of SectIOn 1u];, V.otllflg,. St. te is strong indication of abandonment
temporal'lly lll. ol.elgn a ..•.............•. 131
candidates should appeal' upon ballots, ... , . . • . • • • • • • . • . .. •..•• 11& of l'esidellce in tlns State : -med forces on
Sect!o~s 15 and 31; certif~ca~e of. appointmont of elm·tion· com-
0 • , • • • • • •

' 1"2 e:fl'ect of dishollomble discharge from at 135

S ec t IOIt U ,
0
••••••••••••••••••
• m~sSlOner must reflect majority 0PllllOll of county committee •••. 114 civil rights .........•, ,:. i-. i' ...• ~a" til~reaftel' pardoned or
ScctIons 15, 131(5),140,143(5),146,3.14(8); eJl'oc,t o:!:.faiInro o:f
to~vn caucus to make nominations for certain town officos...... 82 Section 152;. person fconVlgtec~ll~~ete~~~d anot exhibit such docnment
Serltlon 30; Justice of the Peace may servc rOJlluinc1er uf his terlll given certrficate 0 g?O t tOme of registration ..•.........•... 150
anel hoM office of election commissioner ..............•... , . . . . • 3 to. inspectors of ~le~tlOn :atio~lal institution fumishing certificate
Sections 40, 43, 46; temporul'y appointment o:E inspector o:E oledion SectIons 16~(1), 16 't ~~~ory literacy certificate need not be located 0
to nIl vacancy .,. 125 accepted III heu o.f8 8 a ..•••.............. , 15
in, New York s~ato... ''';'~l;;~l~ ',~it~' ~;q~i;~d citize!ls~ip by marry-
0 ••••• 0 0 ••• _ , •••••••• , • • • • • • • • • • • • • • • • • • • ••

~ect~ons ,52(11) ,24a, 265; Tenting' of voting lI1!lchinCl!l by village.. 1(1

Sectl~n 66 (1); to~vn board as ~ lllatter of p~bIic convOl.tience Jnuy SectIons 168, .1?9, ~hef921 before attaining her maJol'lty, must pro- 155
de,slgnate a poIIlllg .place outSIde of IJoUlldrmes of e]cctl(lll rliHtl'iet 5l ing U. S. cItizen ~n , d' to be entitled to vote ··•·
Se?tlot,ls 67, 83 (2), 87, 90, 141; cletermination ns to Vlllic1ity of 110m- duce literacy cert~fica~e In 01'1':1 of electio shall not register narr;e
lllatlOn for VIllage office must, in the first installc,O, be mlHle hy Sectio11s 171, 172,. 331 lllspect~ any questio! upon challenge affidaVlt 156
the village clerk ,............................... 24- of person refusmg t;0 answer
 180 INDEX
Sections 173, 200, 331, subd, 2; voter enrollhig as member of political
~arty may comp,el inspectors to receive his vote at pl'inuuy olec-
tton, al~houg'h Ills na~lC does not [LPPClU' on enrollmcun hook, by
appropuiat« court action ,"', , ••. ,................. 107
Sec:tion 200; time for voting' by employees applies to a spoclnl clee-
ticn .... ,., .. " ..... , .....• , ... , ............••.•.....•...... 110
Section 200; time oIt for employees to vote upplleahlo to villag(l
el~ctions .. , ..... " .... , .. ,', ... , .. , ...•...•...........•.•. ;. 124
Section 226; bartender not entitled to be paid for time off to vote.. 164
Section ~26; claim :/'01' wages illeg-ally withheld because of employees
absentlllg' themselves for purpose of voting' arc rccovernblo by civil
su~t tlu;ough private ~ounse~ .. ,'." , .........•. : •. '. .. 170
Seetiou 226; employer lS, entitled to deduct from ClJ1plo,Yco'S wages
for, absence frorn work ill excess of the hours fixed, for lJU1'llOSO of
VO!lIlg .,., •.......•.••.. " , •....•.•.•.•.••.. ,........ 166
Sections 241, 24~, subd, 1, 21:11, 2{i~, subd, 2; procodnru ill printing'
ballots for voting upon local OptI011 questions. . . . • . . . . . • • • . • . • .• 156
Enrollment:
Electip11 Law~ ~ections 173, 209, 331, subd, 2; voter enrolling as mem-
ber o,f pclttieal ,Party lJlay compel inspectors to receivo his vote
at primary election, although his name cloes not appear on om-ell-
ment book, by appropriate court action........................ 157
.Executive Law:
Artic~e. 13; persons employed as ptut time instrl1dorll Itt county JIm
traHung schools arc State employees during~iIno of such (1n1llloy-
m~nt ...•... , .........•. : , ,.................... 122
SectlO,ns 101, 102, 103; reqUIrements f01' iiling cel'tificate of doing
business under assumed name where notary public boJ'ol'e whOJII
acknowledged has not qualified in County.whoro certifioate is to
be filed ' , .....•..•.•• ,.,. :J 36
Section~ 1.0 2, 100·a; lluthentication of sig:~I{t'dr~' ~f' ~~i~;,y p;liJil~: ~~, .,
COlJlmISSloner of deeds by County Clerk ..•.•.• , •••••...•.••..•• laa
Expenditures:
Village Law, Sections 81, 89(21),(21-11) .'333' pOW01' o:f village maym-
to authorize expenditure of village ~oney's
Expe.nses: " .
Gener~l Municipal Law, Section 77-b; 'I'own Law, Sel'.HOIl 102; au-
thorIzatlO~l for the p.a.yment of expenses of town ofllC'cl' attending.
a eonventlOll of mUlllclpal officers
ViI~age Law, Section 224; meth~ds ~f' p~yi~g' ~~~t' '~:i '~~t~;\~i~~ , ~;, 27
vl1lage water system ., ... , . .
•• lot .'''' to • • • t " ' . f Of ..
Father Jogues Monument:
COBsel'vation Law, Section 00" ~mvs of 1930, on. 870, Laws ot' :1ll:17
h, 14 al~d 735, U.S.C,A. rltle 17,. Sections 1 find 5 sulld ().'
Con~eI'vatlOn Department may allow CmJisiuFl Col1(\g'O to' h g.>
,replIca ma(~e of Father Jogues MonuJnent fit Luke' a 'r 1I'~P;
sculptor aSSIgns copyright to people of State of N' 'y ok I )) go d.
ew 01' .••••• 151
Federal Employees:
Electi?ll Law" Section 151; resident of this Stato en tOl,jug 1'01" 1
IS~l'VI~e outs~de 'dStute does not lose his I'esiclence solely hecu~~eel~
llS a sence 11101· ent to such employment
Electioll Law, Section 151; voting in locui '~I~~tI~; .. b' . ~; '" 101
ployee residing' temlloral'ily in :foreigd State is \~tl'~ gl! e.dyul t~J\l·
of abmHlonment of residenee in this Stat I. llH Ion. on
e. , , ••. , •. , ~ 181
INDEX 181
I!'ederal Housing Project:
Education Law, Sectio11 2012; residents of fe1leral housing project
may voto at central school district election .......•............ 43
]'ee8:
County Law, Scction 174, Civil Pmctiee Act, Section 1554; rig'ht of
county clerk to charg« a recordlng fee for reproducing by photo
copying extraneous matter appended to document to be recorded .. 140
County Law, Section 174(:1); fees of Fulton County Clerk for filing
eertilicates of sale of lands sold by 01' to the city for unpaid
t!LXeS ..•.•••.•...•...•..•.... , •.... ,........................ 65
General Business Law, Section 32, VilhLge Law, Sections 89(48),
01 (1); village may not by ordinances prohibit IL licensed erip-
pl?d veteran fr0!11 peddling witl:i~l villa~e-lieense~, who is no~ ?'
eripplo not required to paJ' additional licenss fee III each mumci-
parity wherein he peddles .,., .. , ..... , .. , ..• , ... , ... , ... , .. ,., 46
POI'SOllal Proper-ty Law, Bections 70 and 70·b, Lien Law, Section
2:14 j fee 1'01' filing asalgnmsnt of: conditioual sales contract or
clurttel mortgag«, Veriflea.tion of search hy telephone does not
constitute certificate of: search .••.. ,.......................... 105
Velricle and 'l'mffic Law, Section 54; disposition of fees collected
frorn parldng meters •.•.•.•........ : ......•.............•.. " 94
Vilhtg'o Law, Sections 8~)(48~, 91(1); vl!~ag'c.lllay not exac~ unduly
high license fee f:or hawking 01' peddling III order to stifle com-
petition .....•...................•........•.................. 70
Felony: 1
1'01'13011 eonvieted 01' felony mid thoraftor pardoned 01' given certifl-
euto of gooc1 conduct need not exhihit such document to inspectors
ILt thno of rcgistration ..... , ...............•.........•...•.•.. 150
J!'ire Districts'
General Munieipal Law, Section 209 (1.); city sl~Oll1~l adopt ordinance
. permitting eIty lire department to aid a fire district , .. , ...' . 70
LILWS 1911i, Clmpter 222 (Section :117, Former Town Law); fire
clistrie.t :formcd under Chapter 222, Laws 1916 may expend funds
fOl' installation of fire hydrant .. " •.... ,...................... 64
Local Ii'Inauce Law, Seetion 24,O~; fire district may not borrow
moneys in anticipation of taxes from the town, , . , .. , , . , , ...' ...' . 49
'I'own Law, Sections 80, 220; determination establishing fire d;stl'lct
01' water supply district must be made by town board, WIthout
referendum :, , ..••.... , , " : •.•. " .. 107
~'OWll Law, Scctions 170, 1713; change of name of fire dlstriet which 75
has been extended ., .•.................... : : ..:
'I'own Law, Sections 175(3); :~70~11), (l1·a) cln~f of Yol~Ult~Cl fire
·O f.
91 department serving a fire district may be candidate fm fire com- 0
missioner but should 110t occupy both offices..•..... '.:' • ',' ..' ... 1 4
'I'own I"uw' Section 170(11·a); nominations for office of chief en-
gineer of fire districlt must be confirmed bJ' board of fire com- 66
miasioners of district ., ,., .•.. , ,.: .. : .. , : .. , .
'I'own Law, Section 170(18); umounf which fire 1hstl'ICt may expend
without adopting proposition. . .•......... : .•. , ....••,..•.....• f
81
Village I"aw, Sections 200, sull. 10; 209 i reSIdence reqUIrements ° 110
member of village fiI'e department ........•..•..•.....•......•
f .•• I.
 182 INDEX
INDEX 183
Town Law, Sections 175(3); 176(11), (ll-a) chief of volunteer iil'O
department serving a fire district may be candidate for fire Com- SeeticlllS 32, 35; issuance of veterans peddling license notwithstand-
missioner, but should not occupy both offices.........•..•••.••. 104 ing the existenee of local ordinances, rules 01' regulations govern-
Village Law, Sections 200 subd, 10; 209; residence requirements of ing peddlers , .. , , ,.,........... 59
member of village fire department .......•....•.•..•.•.•..••. 110 Seetions 40, 46; rute of interest which may be . exacted by pawn-
brokers in cities of less than two hundred thousand population ••.. 143
Fire Proteetion r Boctlon 60; ordinance authority of village to adopt ordinances licens-
GeI~eraI Murrleipnl Law, Se~ti?n 209; city may render flre protcc- ing and regulating junk dealers ..... ,......................... 47
tion outside its corporate Iimits , . , . , • , . , •. , •....•.•.••• , 15 80n01'al City Law:
General Municipal Law, Section 209D; villagn may cOlltrlld for out- Ai-tiele 4, j city may adopt plumbing code providing that none but
side services of its volunteer flre department. , .... , . , , . , . , •..• , , 10 mnster plumbers licensed under the codo may do business within
Town Law, Section 170 (1,2); procedure for the establishmont or the city ....• ,., .•.•... "" . , , , , , .. , , 19
extension of :fire protection districts ..... , ..••...• ,........... 80 Setltion B; city offlciul may not be employed by the city as a crafts-
Town Law, Section. 184; right of town board to contract 1'01' llre lUan or laborer on a per diem basis. . . . . . . . . . . . . • • . . • . . . . • . • . • • 61
protection on behalf of a fire protection district, , .... , .... , . • . . .. 5;\ General Constructlon Law:
Town Law, Section 184; amount of proposed contrud :f'Ol' flro pro- Section 1:1 j rcqulromenta for flling certificate of doing business
tection should be set out in notice of hearing thereon,.... . • . . • • . 86 under assumed name where notary public before whom aeknowl-
Town Law, Section 176(10,12,22), Section HI'),; Gouoral ]\{unild!lllI edged has not qualified in County where certificate is to be :filed.. 136
Law, Sections 209, 209-d; manner in which fire protcctlon can bu uf- General Munieipal Law: ' . ,
~or~led tha~t portion of territory within town ontside corporute Article 13; adoption of budget for town recreation C?mmISslon.... 96
.1mn t s of village ,." " .. ,.,., ", ..• ,... :W Scw.tion 51-a; public records may not be destroyed III absence of
VI~Iage Law, Section 89(24); village hoard of tru~1:l~es may <'Ilte]' specific statutory authority ..•.. , .•....••....•.,., •••. , •.• :.... 137
.mto contract for :fire protection with fire department ..... " , . , , , '1 Section 77; right of village hoard of .t1'U~toes to sell 01' Iease village
VIllage Law, Sections 200(5), (6), (10), 202, 204, 205; .GeJlf~I'ItI Muulei- owned proporty to veteran's organization ., •...•.•...•.. :..... 9$
pal L~w, ~ectioll 20~; n;tell1ber~IJip of PO:'SOllS I'csiding in tOl'1'itOl'y Section 77·1.>' uuthorlzatlon for tho payment 'of oxpensea of town
III wInch tire protection IS furnIshod by VIllage '(il'o dOptll'tlllOl1t. ... 44 oilieor atte:Iiling a convention of municipal officers. ,.'..... 27
FislJing: Selltion 92' county highway employees employed on a pel' diem or
, hourly b~sis lUay bo paid for holidays if credited to annual vaca-
Conservation Law, Section 1,80, subd, 9) no revival hy nhapl.c\l' (i4], tion .....•.......••• ,., ..•...••.•••.•• , ...........•.•.....,'. 63
~~ws of ~[)'18 of exemption from lieunsn for -fl.shil1g' hy \\'0111(111 Seetion HH; burial allowauce for a veteran not affectod by Me
Cl rzen residenes •.••.•...........•......••••..•.....•....•••• 115 insurunce ...••. , ... , ..•. ,." ..•.................. , .. .' .... : .. 57
Foreclosure: Section 200' membership of persons residiug in terrltory 11l which
Civil Practice Apt, Sections 1077-a, 1077-gj fOl'eolosll1'C1 oJ" mort- Ilre pl'otedtioll is furnlshed by village fire department ....' ... , ','," 44
SOr,tiOll 205; benefits are allowed volunteer fireman and their fumilies
~ages dated prior to July 1, 1932 for dofault in paynwnt of prin- oven though such volunteer firemen are under the age. of 18,.... 89
cipal suspenc1ed for emergency period.........•.•...•.• , .••.. " 139 Scction 205; exponditu~'o of village fUll~s. to purehuse lll~U~'allco t~
Foreigll : provide beneflts for Its firemen III addibion to tI.le covelago under
Pen~l .Law, .Secti0!1 1897; no ll~cessity of Parag'uuyan Consulate ob- the Gen. MUll. Law and Workmen's Compensation Law not per-
mittecl .. , ..•............ , , , .. , ,.,'. 26
ta1ll1ng pistol liceuscs for pIstols heh] pOlllling shipment to its Se(!tion 205; bonoflts of aetive members of volunteer fire cempa~les
.government ..•......••..•.......•...•.••...•..•.....••.•.•.. : 124
RIght of fo;relgn governments to acquire, hold and cli~pose of real uetuully engaged in figh ling fires, regardless of whether having
earned their exemption corbiflcate 01' not ....••...... '. ' •.....•..•
97
property In New York State,., .•.. , .. '..••...... , . '• ...••....• 141 S(mticlll 200; cHy may render lire protection outside ItS corporate 5
Funels: llmlts "" , ,., .. , ".", . , '.' . , : ' .. , :.
Educa~ion. La,;, Section 26~; aU moneys receivOd by a l11unieipal Se(!!;ion 20{); paid volunteer. firemen may p,r~per~y oxtI~I.g\llsh 1ire~. III
F'ederal builclings if pcrmlbted by authol'l.tI~s 11l charge and during
pub~l~ h~raIY should be 1ll the custody of tho tl'ClllSllJ'Ol' of tho such time arc protected in the even~ of lllJury ?l'.doatI~ .... : ..,'. 122
munlClpahty .•.............. 78
~'owu Law, Section 291 (1); to';I{ 'il;J;(j~ 'J~~Y' i;r~p~'l,iy . ;\~il;n;;l;,ll
in;' Seetion 20!l(1) i city shoultl arloIJt ordmance pormlttlllg Clty file cle-
lal'tmont to aid a fire ilistrict , ,." •..... , , 70
,to care for an !1bandoned public cemotery ..•.....•..•..•••••. .'. 67
VllJago Law, SectIon 127; surpl.us funds 0:(' village waren' depJU'tulC'l1t f:lchtioll 20D-!',; I'eel lights may not be c~isphlyed on privatoly owned
motor vohi.clo of a member of fire pohce s~uad, ..: .. .. ..... .. .. .. 55
may be tI'ansfel'l'ed to sinking fund for future hllprovollJonts. , •.. 111 Soe!tion 20!lD; village may contract for outSIde serVIces of lts volun- 10
Garage: teol' 111'0 dop!\.l'tment ,.,"', ... : .• , .•. ,.,.,': •... , .. , .•.,;,.... d'
Highwal Law, Soction 142; limitations upon town }1011l'(1 in cou. opc t'lons non
". '" v, "Oll (1' In'lllnor
... ,'., <
in whICh
. .
:fire
.
protoction can tbo rfl.uorele
't f
structmg town garag"e .,., .... "."" .. ".. 150 'tIlat portion of tel'l'itory within town outside corpora'e lml s 0 39
............ I •• t •••• , villago , , , , , . , .. , , .• , ......•... , . " .. , .. ,
Goneral Business Law
Gifts: . ,
Secii~n 32; village may not by ol'dinaneos prohibit a Heensed crip County IJllW, Reetioll 12(50A); right of county te accept gIft to be 7
P ~ leteran fro.111 peddling within village-Jieol1seo wilo i~ not ~ used as pubHe IJal'k a~ld museum .•.... , , , .
cr1Ff e nhot :eqlull'ed to pay a(lclitional licenso :Eee i~ eMh ;mllliei.
PO; I Y w er~l1n Ie peddles ,.,."" , .. ,.,. . Highway Law: 108
SectIOn 32; ISSuanco of veteran's license to p1Jd(lle by' N'"
'y' '1' 40 Section 135-11' removal of snow from County roads by to~s, ....•
Oounty Clerk to a resiclent of Bronx County .......• ,. ~~•.• ~~ ~ 52 Soe.tion :i~~2;' limitations upon town board in constl'Uetlllg town 50
gal'ng'e to , • , •••• I t ••••••••• I •• , .
 184 INDEX INDEX 185
Holidays: .T unk Dealers:
General Municipal L!1w, Sec~ioll 92 j COlll1.t.y high way elllploJ'(\e~ om-
t
oyee! oJ.1 a pel'. diem basis may be paid f'or holidays if <\rec1itec1
o annual vaca tinn .,., .... ,., ..• " .•......• ,.,., .. , •••• " .. , 63
General Business Law, Section 60; Village Law, Section 89 (52) .
ordilll\.]~ee ~uthority o,e village to adopt ordinances licensing ILlld
regulatmg Junk dealers ..... , , .. , . " , ". , ... ' .. ,. , , '" " .... , .. 47

Hunting, Trapphlg and Fishing Licenses: .ruriadiebion :

Oon~erVflti~1l Law, Section 180, subd, 9; no revival by Ohaptor (141
I:'!l:ws of ~948 of exemption from license for Jhl1ring by WOI1lOl:
ertizen reaidents .,., .. ,."., .•. ,.,.,."" ... , ... ".,.", .. ". 115
Hydrants: ! a Wll;l'Wf1rd 11111101' ., ••• , ••••• , •• " , •• , ••• " •• , •• ', ••• , ••• , ••• , 144
La,;.s 191~, Chapter 222 (Section 317, F01'l11er Town Law); 'fire clis-
~l1ct fm.med under Chapter 222, Laws 1916 may expend :l'unc1s for
matallatinn of :fire hydrant .. ".,., .. "., ..•.. ,." .• , .. ".,., 64
Independent Nominations
Election Law, Section 143, 144; time and place fOl' filing petitions
for ln~ependellt nominations for village offices, to be filled at an-
nual village elections "', ,.,.",.",." . , . , , , , , , , . , , , , .. 38
Inspectors of Election:
Election Law, Seetions 40, 43, 46; tompom ry appoiutmont 0'1' in-
P spector of elec~lOn to fill. vo;ca!lCY . , , , .•.. , ... , . , • , ..•.••... '. . •. 125
enal .Law, section 772; intimidation of voters by inapeeton, 0"
election • .•.
Village ~a;~~' 'S~ct~~~~ . 5i; :53-~'i' '~iii~g~ . ~ffi'cj~js' 'J~~ty' 's'e~'~~' '!t~' 'i;l: 150
specters of election and secure slg'naturcs to nominating petitions 24
Insurance Law:
Section ~53;. expenditure of tax on premiums of policies of fOl'oiO'n
and alian msuraneo companies to repair fn'ellouse ..... , •.• ", ..b"
Iuterest :
R~::s~ia~;~~~sL~~~~ ~l~s~~dexacted ?y pawnbrokers ill cltles ()f
Village Law S ti population, :. , ... , , ..• , •. , ..• , '" 143
sold at t ' e{ Ions 125, 126 (6) ; ra te of interest up Oil properties
ax sa es , .. , ,., .. ,.,.,."".,., ..•. ".", ,.. 32
Investments:
Membershi~ Corporations Law Section 97 P 1 Article 6; elaim for wages illegally withheld because of 'employees
Chilclren's Court Act, Arbtclee 1 to 4: inclusive; 00e1e of Criminal
Procedure, Sections 659, 660, 001, 602-e, 870, g13-a to 913-d inelu-
sive ; judge of Children's Court has no power to eommit a child
to a State ho~pital for observation as to insanity unless child is
Village Law, Section 186; process issued by village police justice in
civil cases 1I1uSt be served within village territorial limits ......• " 152
Jury Trial:
Waiver of right of jury trial by Corporation Oounsel , . , .• , ..• , , .. , 100
Justice Court Act:
Scetion 80; constable's jurisdiebion in dvil mu Hers (jOVeD'S entire
county. He may make urroat upon wurraut of justice of the peace
anywhere within their county., ,." ,............. 160
Section 270; civil compromise of couservntion penalty may be entered
into 011 a Sunday 01' holiday. , ... , . " , ~ •...... , . , ..... , ... , .•. , 120
Beetlous 472, '174j town clerk may not issue transeript of judgment
where j ustice who rendered such judgment is still in office but
L disabled ,.,."., .. ,.,., ...•. , .. , ,., , , 1 147
Justice of the Peace:
Ooustitutinn, Article 13, Sectiou 12; Town Law, Section. 27 (1) ;, re-
duction in salary of justice of the peace because of inability to
serve ., ...•. " "."., , .. ".,.", , , ""... 31
Election Law, Seetioll 30; Justice of the Peace may serve remainder
.f3
'±
0:1' his term and hold office of election eommisaioner . . .. , , • , . , .. , 3
Justice of tho peace may hold office of member of Board of Education 37
Juvenile Delinqnents:
Children's COUl't Act, Section 12; Judge of Children's Court may
designate either ,sheriff's office 01' the probation office to transport
delinquent child to institution to which committed .. , ..... ,.,.,. 169
Labor Law:

~rg~~rit~bPee~~~~~e~~~e~~;~r~~f;~~~~l~~~~~~y~e~~')~)Jt~t~lt{.f~~d~
absenting themselves for purpose of voting are recoverable by civil
suit through private counsel 170
question for the court '. ,L U CIlRe a
, , , ..... , •... , ...• , •••.• , , , •...••...• 182-133 Laws 1899:
.Judgment: Chapter 275, as amended; fees of Fulton County Clerk for :filing
certificates of sale of lands sold by 01' to the city for unpaid taxes 65
.Justice Court Act Sections 472 474' t
scri t of iud rri .'. , OWn clerk may not issue tran-
stiltin offi~e ~ute~;sa~f:le JUstICe who rendered such judgment is Laws 1916:
... ,. , " ..• , ..••.••...•• 147 Chapter 222 (Section 317, F'orrner Town Law) ; fire district formed
under Chapter 222, Laws 1916 may expend funds for installation of
.Judiciary Law: fire hydrant , •. ,." •... , .. , ..•••..••• , .• : .. ,................. 64
Section 5, civil comprom' f .
. into on a S~day 01' hOlida~e 0 conservation penalty may be entered Lense i
.",. ' •... , , ,. ····,·, ••..••. ,.120 Village Lnw, Sections L-a, 89(3), General Municipal Law! Section 77;
.Juuior Operatol's License: right of villuge board of trustees to sell 01' lease VIllage owned
property to vcteran'a orgnnisatlon ....•.•. , ...••••. , • •.. • .•.. .• 92
Vehicle and Traffic Law Sections 51(2) d 20
,under eighteen years of age issued .a~.(l) [b]; nonresident Li Imll'ies:
may not operata motor vel{icle in ~)ela;rs se by other state
been issued a juniol' operators Il'C eW Norkllcen
State unloss he has Eelucation LI1'v, SectiCYll ~55 ; proposition to cstab.lish a pubJ+c library
ense b y ew York State •• , . , ., 121 may properly be submitted to the electors at village electIon.,.... 9
 INDEX 187
186 INDEX

Local Finance Law:

Education Law, Sections 253, 262; member of town board need not be Section 24.00; fire district may not borrow moneys in anticipation of
named and cannot be compelled to serve upon board of trustees of taxes from the town " .' , , , , , . . . . 49
free association library , , ..•.••.....• ,............ 102 Section 35.00; qualifications of voters on bond issues, , . . . . . . .. 20
Section 36.00 jquulifieations of voters who may vote upon a bond
License: resolution of a village , ····.······,······ 103
Agricl1ltl~re and Market~ I"a,w, Section 109; dog license is valid any-
where III State, except malty of New York, where a separate license Local Option:
must be obtained .............•..............•.•.•.••...•••• 116 Election Law, Sections 241, 248, Bubel. 1, 261, 266, subd, 2; Aleohofie
Conservation Law, Section, 180, sub~. 9; no revival by Chapter 6M, Beverage Control Law, Section 14~, subd, 3) procedure III prinbing
Laws o~ 1948 of exemption from Iicense for fishing by women citi- ballots for voting upon local opbicn questtons .......•. ,.··.··.. 156
zen residents ....•...... ,.................................... 115
General Business Law, Section 32; issuance of veteran's Iicense to Madison Barracks:
peddle by New York County CIerI, to a resident of Bronx County.. 52 Village Law Section 41; residents of Madison Barracks Area which
is olltsicle' corporate limits of Village of Sackets .Harbor not en-
Ge~eral Busine~s Law, ,Section 321 35; issuance of veterans peddling tiitled to vote at village election . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . .. 23
Iieense nothwithstanding the existence of local ordinances rules 01'
regulations governing peddlers .•.....................• .'........ 59
Penal Law, Section 1897; no necessity of Paruguayan Consulate ob- Marriage:
Domestic Relations Law, SCCtiOIl 8 j validity of m,arria~e contt:a~ted
taining pistol licenses for pistols held pending shi pment to its outside state by divorced party whose remllrl'lage IS prolnluted
,government •.• , .....................................•.••...• 124
VIll.age Law, Section 89(48),'91(1); v~llage may not exact unduly without consent of the court ··············•···· 169
l:I~h license fee for hawking 01' peddling in order to stifle eompo-
Mayor: . .'
tl~lOn :........................... 70 Oivil Service Law Section 32' Villa.ge Law, SectIOn 43; retired v1Uage
VehIcle ar;d Traffic Law, Secti~ns 51 (2) and 20(1) [b]; nonresident policeman may' serve as mdyor ,of village a.nd receive salary thereof
under eiglrteen years of age, Issued operators license by other state without loss of retirement penslOll or amnnty ... , , . , , . : .. , ... , . ,. 36
may ~ot operat.e l)lotor vehicle in New York State unless he has Village Law, Sections ,81, 89 (21? ,(21-a.), 333; power of VIllage mayor
b~en Issue~ a .Jumor oper~tors license by New York State ....•• 121 to authorize expenditure of VIllage moneys, . . . . . . . . . . . . . . . . . • . . . 55
Velucle. an~ !raffic L~w! Section ,70, ~ubd, 10 an~ 11; no requirement
for recording conviction for violation of Vehicle and Traffic Law MllIllbel'ship Corporations Law: .
all o~t',of-state license of nnnreaident operator. Out-of-state trafflo Section 27; investment of funds of O~laritalJle Membel'slup Corpora-
cO.n':lctlOn may not be considered by New York Justice in deter- tion is in any doubtful case a questdon for the court .... , ..... 132-133
mmmg whether a person convicted before him is a subaequent
offender ......• , . . . • . . . . . . . . • . . . . . . • . . . . . . . . . . • . . . • • . . • . . . .. 146 Minors:
Town Law, Section 176, subd, 10; minimum age which persons must 87
Lien Docket: attain to become members of volunteer fire company ., .....•...
County clerk in county having less than 500 000 population not
authorized to make new eonsolidated index of' notices of lien filed Mortgages:
Civil Practice Act; Sections 1077-a 1077-g; foreclosure of .mor,tg::ges
and indexed prior to effective date of Section 172-a, County Law .. 153 dated prior to July 1, 1932 ~or defanlt in payment of pri.neipal 139
suspended for emergency penod ···················
Lien Law:
Section 234; fee for filing assignment of conditicnal sales contract or Newspapers: . " " d ., '.
chattel mortgage. Verifieution of search by telephone does not eon- Election Law, Section 93(3); cost of .llnauthonzed newspaper a. ver
stitute certificate of search .......•.•....•.........•••. ,....... 105 97
. tisements by electron commissioners IS not a proper county ehai ge ..

Liens: Nominating Petitions:

Conditional Sale Cont:ract; contracts for conditional sale of goods
affixed 01' to be affixed to realty are not liens and may not be
indexed in a consolidated lien index , 153
Lighting District:
T~wn Law, ~ection 198 (6) j lighting district may be extended to
Include private road ........•..•..••..•...••••••..•.•....•••
Literacy Test:
Constitution, Artie-Ie 2" Section 1 Election Law Sections 168 169'
alien woman who. aeqnired citi~~n~hip by mal'l'ying U. s. citize~ ir~
B2l.. before attaining ]~er majority must produce literacy cOl'tift·
cate m ardor to be entitled to vote
Elee~i.9n Law, Section~ 16~(1), 168, ed~~~ti~~~i'i-;stitI;ti~~ 'il~;l;i~iIi~g 1 5
coi tifleats a.ccepted III heu of statutory literacy certificate need not
be located m New York State
Village Law, Section 53-a' Election Law, Article 14; !ll'oceelure fut' 24
the illvaliilation of nominating petitions .... , ... ,,·,·,···,····,·
Nominations: . " rder in
Election Law, Section 2(5), Sections 83, 87, 90, 103(1,2), 0 12
which names of candidates shoulduppear upon ball?ts, . t' .f . i .. i
Election Law, Sections 70, 250, 26U, sub.d. 2) ar;~l~geJ~~n. 'e~ionoc~f
questions submitted to voters of a CIty IS WI un iscr
76 Board of Elections , d .. 147
Election Law Sections 136-a, 143; limitations on the right to esig- 18
nate and n~minate party candida.tes. , , , . : ' .•.•.•..: .
Electio~ Law, Sections 137 and 139; limitation on the ~g~~ t~i~~S1!f
nate 01' nominate party candidates-acceptance or ec lila 77
designation or nomination ...••.•.•••..•...•........ , •... '...• t'
5 Election Law, Sections 1~7, 146; limi;taltion ~n'o~se ~~::ti~g ~~~~~a~
or nominate party candidates~speC1a provisi ,
. . . crties towns and village caucuses ••...••... , .. , ••..
42
pnmar1es in I '
150
188 INDEX INDEX 189

Town Law, Section 176 (11-11); nominutions for office of chief on- "Party" (Defined): , ..., ..
gineer of fire district must be conflrmed by board of fire commis- Elec,tion Law, Section 2(5), SectlOns 83, 87, 90, 10,,(1,2), order m
which names of candidntes should appeal' upon ballots.,., .. , ... ·, 12
sion ers of district. , ·.·,.·.,.········,······ 66

Nonresidents:
Vehicle and 'rrafflc Law, sections 51(2) lind 20(1) Ib]; nonresident Pawnbrokers:
under eighteen years of age, issued operators license by other Btate Rate of interest which may 110 exacted by, pawl1b1'okers in cities of
may not operate motor vehicle in New York State unless he has less than two hundred thousand pOllulatlOn ... , . , .... , . , .. , . . . .. 143
been issued a junior operator's license by New York State ..... " 121
Vehicle and 'I'rafflo Law, Section 70, sub. 10 and 11; no require-
ment for reecrdmg conviction for violation of Vehicle and Traffic ·Pedelling: .
.Law on out, of-State license of nouresident operator, Out-of-Stahl
traffic conviction may 110t be considered by New York Justice in
General Business Law, Section 32; issuauee
peddle by New York County Clerk to a resic ell 0
?i
~oto;'n~;:l;~ceCl~~ll~;
ddll
52
determining whether 'a pel'son convicted before him is a subsequent General Business Law SerJion 32, 35 j Issuanco of v~terllns pe 1 mg
offender , .. , " , .. " , .. , .. , .....• "...... 146 license notwithstanding tho. existence of Ioeal ordlllllnces, ru es or 59
l'egul3,tions governing peeIdlers ,., ,., , ..:' .
Notarv Public: ·
'I'own. L aw, S eet'.10UR,36(9) 1'17' town board may not gmnt exclUSIve
,;.J, ' , 39
Executive Law, sections 101, 102, lOa, General Oonstruetion Law, i ht to anyone to peddle within the town ·.····,,··,····
Section 11, Penal Law, Section 440 j requirements for filing «or- r g . 89 (48) 91 (1)' village may not exact unduly
titicate of. doing business under assumed name where notury public Village Law, SectlOn ,. . . " , ldl' ln ord l' to stifle competi-
before whom acknowledged has not qualified in County where
high license fee for hawkmg 01 poe mg in 1 e ., ,. .. 70
tion , , , .. ,', , .
certificate is to he :filed, , ,, , , . . . • . . .. 136
Executive Law, Sections 102, ] 06-[1; authentication of siguaturo of
notary public or commissioner of deeds by County Clerk ... , ... " 133
Penal Law: l' 'ffi t f doing business un-
Old Ago Assistance: Seetion 440' requiremonts for :fi mg' cel, 1 ca 0 0 1 b k le lged
• , d lame where notary pubhc before w 10m ae now l
Social Welfare Law, Sections 102.1, 210; 1101'SOn otherwise eligible del' assume: . C t llere certificate is to be filed...... 136
for old ago assistance not disqualified by fact that person has le- has 110t qnahfied moun y 'titl d to lJC paid for time oil' to vote 164
gally responsible relatives who are not willing to furnish support.. 116 Section 759; ba:tenc1er not. el\!I Cally withhold because of elnployoos
Section ~50; claIm for wag~s :g se' of voting are recoverahle by
Ordinances: absentIng themselves for pUlpO, . . .. , ... 170
Village Law, Sections 90, 95; sufficiency of publication of summnrv civil suit through pr~vate .COlll1S~~. ~l;>~l~l~t' £;'~l~: 'e;l~~li~y~e;s wages
of village ordinance ., , , , , , ".. 62 Section 759; employer lIS ~ntltle(~ss of 'the hours fixed, for purpose
Village L~w, section 178; method of adopting change in village zou- f'or ahsence from wor t In exc ...•...•. , . . . . . . • . . .. 166
lng ordinance ......•.........••. , , .......•... , ....• ,. 109 . of voting .: ", "," . : " .... " .. .' . b';
'i~~ 'l~ctors of election.... " 150
Yillage Law, Sections 228, 229; authority of villago to enact ordi- Section 772; llltmndatlOnlof .VOtC1St l)~e cn!p10"ed bv the city as a
nance to enforce the collection of water rents by cutting oil' wnter . 18f'R' cltv officia mav no of' • 61
See.tlOn ,1 " . . ' ,. r diem basis., .. ·.·,····,····:···
supply '" , - , •........... , , : . . . . . . . . . 98 craftsman 01' laborer on a pe . ' nd olice justice are vOId,. 108
Outboard Motor Boats: . Sect~on 186.8; con~racts. betwt~;:]~~gl~e~spa~er of village by hoard se
Town Law, Section 130(16); town hoard may not limit size and SectlOu 18oR; (~eslg!latlO~1 o:e officer is a stockllOlder <:':':
of trustees of which vIUag 1 r .fficers in contracts with political
horsepower of outboard motor boats .... , .........••..... ,.... 76 Section l~OS; illtere~t of PU) 1C o~c~~s ......... "............... 79
Pardon: subdiviSIons of which they are iot lease 01' purchase real prop-
Person convicted of felony aIHI thereafter pardoned 01' given certift- Section 1868; village trustees may 1 . ., ,........ 15
. eate of good conduct need not exhibit such document to inspectOl'S orty from village ." '.' .... , . " '1'~' ,~~ -an Consulate obtaining pis-
at time of registration " " " :..... 150 Section 1897; no necesslty of Pa : g 1u
ment to its government.. 124
tol.licenses for pistols ,~le1~t;;~~t~~tl~orfty to enact ordillance per' 61
Park Commlsslonera. Section 21'15; town ~oal "billiard nr10rs on Sunday ... ····,····
Town Law, Sections 210-216; town board acts as appointing hoard
of all special improvement districts , " , 90
11litting the operatIon.
Sections 2380-2383) eil'ec o ·
0:f dishoiorable discharge from armed 135
, .............•.• , . ' ..•.
forces on civil rights , , .
Parking:
~'own ~[1W, S~ction 130 (7) j Iimitatlon upon town board to restrict
p~rkmg on Its streets ., ......•................'................ 8 Penalties: . 51 subd 13 Section 164; Section 956j
Vehicle and Tl'aflic Law, Sections 54, 86 (1)' authorrty of village Conservation Law, Se.ct~on \ ~ disC~'eti~nary 110we1' to settle an 117
chief of police to regulate parking : ...•. , , . . . . • • . • . • . . . 79 conservation co~nl1SS101l la •.. , .. , , ................•.......
compromise actIOns ,.
Parking Meters:
Vehicle and Traffic Law, Section 54; disposition of fees collected I
from parking meters ., , , , ,.,............... 94
Pension: .' 32 84(f) pension of retircd villaf't1
Parks: Civil Service Law, :ectl~~~llde~l whileI he is employed
,
as specia
, , ..... .. .... ... 77
Uounty Law, Section 12 (50A); right of county to accept g'ift to policeman, must e su
village policeman ...•. ,., •.. ,., •.•• , ..•
be used as public park and musoum ,.,., , .. " .. ,. 7
 190
INDEX
INDEX 191
Personal Pl'operty Law:
Section 21; investment of funds of ChurHable Mombership Corpol'lL- Private Road: d d to
tion is in any doubtful case a question for the CO\l1't ....••.. 132-133 Town Law, ~ection 198(6) i lighting district may be exten e .
Sections 70 and 70-b; fee for :filing assigllment of conditional sales include pnvate road ...•.•............ ,., ...•...•.•.•....•.. 76
contraet 01' chattel mortgage. VeriIication of search by telephone
does not constitute certificate of search,...................... 105 Public Health Law: , ,I . 't' f
Pistols: Section 10 (G) j use of word "Boal'd" in connection WIt; acqulsI.lon 0
lands fOl' tho expansion of the Roswell Pa;rk MemorIlJ:l Hoapital , . , 159
Penal Law Section 1897; 'no nClWKsity o:f Parllg'lHQ'II11 (Jollsulutl' o1J. 8oetion 20 (1); right of village to enact ordinance relating to sewage
taining' pistol licenses for pistols held ponding' shipment to its disposal by property owners., , , •........ ". G3
govel'nment . . . • . . . . . . . . . . . . • . . . . . . . . . • . . • . . . .. 124
Plumbing': Public !rousing Law : , -o iect Y
Section !JO j proposed street extension to federal houstng projee ma
Genera] City Law, Article 4; city may adopt plumbing code pl'ovid. be a proper city charge ...•...•.....•......... , .....•.•.•...• 66
ing that nOllO but master plumbers licellsed ullller the lWl!e llIay do
business within the city .......•.. " ... "..................... 10 Public .Lihrury : , . d b a municipal
Education Law, Section 261 i all moneys receive .y " f the
public li~raI'y should be in the custody Of. :~~ •:I.e~.s~~~~ . ~ ...••
Police:
III unicipali ty .. • • • . . . . . • . . . • . . . . . • . . . . . . . . 7S
Alcoholic Beverage Control Law, Section 12H i Village Law, Artielo
PUbl~i1~~~c~~w
7-A; members or municipal boards in villagos in Westchestel'
County may not be intcrested in manufltotul'o 01' salo of alcoholic Sections 90, 95; sufficiency of publicatdon of summary of
beverages ...•.. , ,........................... 27 village ordinance .......•.•.....••..•..•.....•.•..••..•.••••• 62
,Police Department:
Publie 011ieers,: y t. 3. P nal Law Section 1868; city offieial
Village Law, Sections 80, 188, 188-a,e,£; supervision o·f loenl polieo General Ctltb Law'l Secd IbOyll th~ Ci~y as a cl:aftsman or laborer on a per
department , ,..................... 28
Police Justice:
may no e emp oye
diem basis s.. . ..••......•
t'~~. iili 7" interest of
Penal Law, Sect~on 1868, tEdu~t~lonl't~~;, sUb~i~isions of which they
61

Village Law, Sections 42, 47; police .justice need not be Owner of public otneers 111 contrac s WI po 1 , • ••••••• ••••••• 79
record of real pl'operty , . , . , , .....••.. , ....••.... , . • . . . . . . • • • . 20
Villagc Law, Sections 42, 187, Public Officers Law, 8eetion :l; vil.
are officers ... : ... iii' . ~ff~~t . ~f . ~iection of village
'42 .59' . 80: . 81
Vilhtge Law, Bections , , ' e ' ualifleabions .......•......•
lage Police Justice 111USt be a resident of tho village. Acting Police trustee who doo,s not pOpssessIP£oP rS~ction 1868' ~ontracts between
Justice may he nOll-I'esielent " .. ,...................... 68 Villngo L!lW, SeetlOll 332, ena ~w, , . .. 108
Village Law, Seetions 50, 52; 01'1'01' of bonrd of trustees in spoc"U'ying' village and police j~stieLe ar~ ':~~~~~l~~~ . ~~~dr~ge' ~f' As'si~ta;t 'Cor-
term of office of village polico justice docs not uffuet longth of Workmen's Compensation aw, 1 . , • , ., . • ... . . .. 35
term of that office .,., ......•.... ,........................... 13 poration Counsel .....•............ , . , . , ..•....
ViIla~e Ll;Lw, ,Sections 58, 187; filing' of offleiul undertaking hy acting
pohce JUstIce ......•.......•.•. , ,.................... SS Public Officers Law: t 1 Id office of Supervisor.............. 93
Village Law, Section 186 i process issucd by village puliee justice Right o~ State employee tOt 1~1 same time hold office of Justice of 94
in civil cases must be served within village territorial.limit/l. • • . • 152 State prIson guard canno a Ie '. • ............•.
Policeman: the Peace : •..••..•• : ..• '~is' ~~ .~ ':p;e~~q~i~it~'t~ appointment as
Scction 3; resideneo requireme . . .......•......... , .. , , .. 4G
Civil Service Law, Section 32; Village Law, Seetion <til; l'ptil'<Jll vi~lage llOl~eeinan . i.' .• J~l~tie~' ~~~~t 'be a resident of the village. 68
village POlillell1an may servo as mayor of villago and recel ve llalul'y SoctlOn 3; VIllage P? Ice . ident ..•........•....•
thereof without loss of retirement; pension 01' annuity, . . . • • • . . . .. 3U Aoting Polioe Justtce mal be I~on-l~~e UP~I~' ~~piration' of his term
Civil Service Law, Sections 32, 84( i'), Ilension of l'(\!irod village Soction 5; tOW11 clerk continues In 0 •••••••••• , •• 101
policoman, must be Susponded wItHe he is emplovod as Hptwial until vacancy is ~nedl': h. "il~'g~' t;~ds~l'~~" ~a'y 'bd removed from
village poliecman .. , .. , •.................. ".:.:, ......•.. ,.. 77 Section 36; manner 1ll w lIC VI . . •........ , . . . .. 41
Village LaWl. Sections 03, n38, COde of Orilllinnl 1'l'ocoduro, SoeJtion offlee .. , .•.....•...... d' , not be 'de'st;~yed in absence of
154; mem .Ier o:f TOWll Police ]'orce may arrest a pm'soll in !~ vil. Section 65·a; public rec01: s may
speelflc statutory authority •..•.. , . . . • . . . . • • •. 137
.
lage within tho town for violation of village ordinance... . • . • • .• 68
Village Law, Sections 188.a,b; Puhlio OfIicel's Law, Section a; 1'esi-
del~l~e requhelJ1ents as a prorequi site to appointment as village Puhlil: Records: . 4 147 Public Offic.ers Law, Section 65'a,
Education .Law, Sectlons 14, " 51.a' public records may not be
policeman ., , " _. . . • • . . . . . • . . . . . . . . . . • . 46
Polling Place: General
(lestroyedMunicipal
in absence Law, Sect~~nc statu'tory authority............. 137
of specl
Eleetion Law, Seetion (j0(1) jtOWll hoard ELIl a lIlnttel' oJ: public Public Works La~v:.. l't
COllvelliellce may designate a polling pIneo outside o:f lJoullclnl'ie.~
a not circumvent provisio11s of law relating
of election district ....•. , ...•.. " ... , ... ,.................... 51 to the15;
Sec.tion letl~ulllclfPa
tlllg 0 eon 1 Ym
t ra cfs in excess of $2,500.................. 87
Postmaster:
rjl~wn Law! Section 23; offices o:f supel'visor and postmtlstcl' not
Real ~ropel'ty :1' "
Itlght of ..Oloign
governments to acquhe, hold and dispose of l;eal 141
..
lllcompotlble ....•.•.•..•....•.......•.•.••..•.••.••.••••••.• 16G property in N~:W ~~rta)~t~r~l~g'e' b~~~d'~£ 't~~~tees may sell village 74:
Village
ownedLaw,
real See 1011 t'i no t 'held' for a public use •.•..••.....••..••
pl'oper
 INDEX 193
192 INDEX
Salary:
Real Property Law: Constitution, Article 13, Sec,tiou 12; 'I'own Law, Section 27(1); re-
Bection 321 j instrument purportlng to discharge mortgage ahould he duction in salary of justice of the peace because of inability to
recorded even though it does not comply with requirements of. cited serve .. , ... , ... " ..... , .... ,.,., .. ,.,.,., .... , .... , ..... ,.,. 31
section, hut record of such mortgage should not he marked "dis· County Law, Sectiou 12 (5); OOllstitutioll, Article XIII, Section 12;
charged" , , , •.....•.. , ; ...........•• " 123 s:lhu)' of county clerk not to be increased during term of office. , .. , 7
Section 321, subd. 3 j eertificate of discharge of mortgage should not General Municipal Law, Section 92; t\01l11ty highway employees
, purport to discharge more than one mortgage: , .. , ,. 126 employed Oil a pel' diem basis may be paid for holidays if ercditad
Recrea tion Commi ssion : to annual vacation .. , , ...•.. ,., , ,....... 63
'Pown Law, Section 111; General Municipal Law, Artie1e 13 i ndopt lon Secollel Class Cities Law, Section 74; fixing of salaries of city em-
of budget for town recreation commission , , ..• , ..·.... 96 ployees . , , ., , , .. , , . , . , .. , , , .. , , , .. , . . 6
Red Lights: . Sauitary Coe1e:
Vehicle and Trafflc Law, Section 15; General Muuieipal Law, ScctiOll Chapter 'V, Regulation 1; elarificlltlOlI of definition of "Pllblic Water
209-c; reel lights may not be displayed on privately owned motor Suppl;)''' , ,., , 142
vehicle of a member of fire police squad, , .. . . .. 55
Referendulll : Scheol District:
J!Jlection Law, Sections 70, 250, 2Ci6, subd. 2; arrangement of local Educa.tiou La'w, Article 9; right of school dietricts to rent unused
questions submitted to voters of a city is within discretion of sehoolhouse to town for recreational purposes .. "., .... ··• ... , . 59
Board of Elections ., , , " ........•.. " ••. , .....• 147 Education Law Seetion 1804 subd. 6; schoolhouse may be sold by
Local Finance Law, Seetion 36.00, Village Law, Beetions 41, 139·n; a comillon seh.ool elistrict iJ~cludcd in a central school district .. ,. lOCi
qunlincntious of voters who may vote upon a bond resolutfon of It
village ,.,., ,., ,.,., ,............... 103 Schoolhouse:
Town Law, Sections 80, 220; determination establishing fhe district Ec1ucation Law, Article 9; right of school districts to rent unused
01' water supply district must be made by town bon I'd without schoolhouse to town for recreational purposes ... ,., .. ····• . . . .. 59
referendum ,, , , .. , .. , , , • : . , . , • . .. 107 Education Law, Section 1804, subd. 6; schoolhouse may ~Je ~old by a
Village Law, Sections 44, 45 j resolution of village board of n-uatees common school c1istt'lct included ill a central school diatrict .... ,. 106
I
changing number thereof not subject to referendum 01' election.. 101
Second Class Oities Law: 6
Religious Corporutious Law: Sectiou 74 j fixing of salnries of city employees. ' , , ,.
Section 189; Phrase "All persons of full age" ill. Seetion lS9 o·f the
Religious Oorporations Law means persons at least 21 years of age 167
No statutory provision requiring Baptist Church to use lI!ndopen-
dent" o~· "Partieular" etc., as part of corporate title for church to
Sewage: .
r:
'Village Law, Section 89(30), (33), (55), (59); ubh c HealtI:;- Law,
Section 20 (1); l'ight of village to enact ordmance relat.ing to
be considered not a part of the Northern Baptist Oonvention .... 16Ci 63
sewage disposal by property owners ·",·······,·,·· , .
Residence:
Sewer Distl'icts: ' .
Election Law, Sections 117, 151, 300 ct seq.; absentee voting privi- 'roWtl Law Section 198«1)g), 201; town board m~y by ordinances 30
leges of member of armed forces in time of war and of veteran require tlmtdefects in sewer connections be remedied ....•.••....
aubsequcntly becoming college student .. , .. , ..•.......... " , .•.. 148
Elee~lOnLaw, Section' 150; Constitution, Article II, Section 1; ro-
quirernent of four months residence in order to quallfy for voting Sewer Service:
'Village " sewer sarviec
Law, Section 260·b j village may not -,furl1lsh
is ~atisfied by r~sidence in either county, city or viliage .• , .. , •• 158 75
outsic1e of boundaries of State ·,···············' .. '·····,
Elec~lOu !,aw, Section ,150; Boa,rd of Election inspectors may deter-
mme .right to vote from family home of person voluntarily sepa- S i'Vehicle
g n sfind: . Traffic Law"Sectiou
. 54; adoptdon
, of spee dl'imiit or dimanes
rat~d from l~s 1,:ife but furnishing support......•... ,.,....... 149 99
Electl~n Law,. Section 151 j resident of. this State entering Federal by village-signs designating speed zones .....•.. ·······,······
s~rVlCe ontsl,de. State does not lose his residence solely bceause of
, hIll, absence mCld~llt to such ~mpl?Yll1ent... , • . . . . • • . . . . . . . . • • • •. Siren' . . . 74
. -Vehicle and 'rruffic Law; Section 81 (18); '1'own. Law, S~ctiolls.1eel'.
161
Blsction La:",. Section 1511 v~tlllg 111 local elections by .Ii'edoral ern- 176 (ll.a), and 176·a j use of siren on automobIle of ehief englll
ployee residing temporarrly 111 foreign state is strong indication of 40
abandonment of residence in this state 131 of fire c1epal·tment " .. ".··············,················
Vil1a~e Law, ~ections 42, 187, P,ublic Offic~l:s' L~~; 'Se'c'ti~l; '3;
~ili~g~
Social Welfare Law: , , Id . t e
Poh?e Justlce must be a resident of the village. Acting Police Sections 102.1., 210; person otherwise clIglble for 0 a~e aS~ls 3;nc
J ustiee may be non·resident....... ... 68 not c1isquaJified by fact that person has legally l'esponslble lelatIves 116
Village Law, Section 53·0., Election L~w S~~ti'o;;s' 150' .830 .
~t 's'e'q' : who are not willing to furnish support .•.... ;,- :.,; ,' .
voter may not claim place of business 'as residence f~r voting pu;': Sec.tiol\ 469.2; use of tenus "clispensal'y" and chmc by private 118
poses when he habitually resides at another place......... • . . . .• 129 gronp ofph)'sicians ......•...........••........•............
Retirement:
Person r.othed by C1111l1oyer at age Ci5 not disqualified for unemploy- SllOW Removal: ' f · t ' ds by
Highway Law, Sectioll 135·a; removal of SIIOW rOln coun Y loa ' 108
ment msurance benefits if able and willing to accept employment 121
Rubbish: viifl~~S L~,~v' . s~~ti~;; 89'(42')', 'iil,i; .;~~~~~i'~f ';~o',~' ~b.d' ~,ribbi~h 'b~ 13
Vil~age Law, Section 89 (42), 1Ci4j removal of snow anel rubbish by village .. : " " .. ,-; , .:, : '," ,: ,.: " ..
VIllage .. ", ;............ . • i ••••• _ ••
10 • . • • I" "i'
•••• 13
 194 INDEX
INDEX 195
Speeding:
Tax Sales:
Vehicle and Traffic Law, Section 54; adoption of speed limit ordinance
by village-signs designating speed zones...................... 99 Village Law, Sections 125, 126(6); rate of interest upon properties
sold at tax sales , , ,........ 32
State Employees: Term of Office:
Civil Service Law, Section 22(1) i employe.a SUbject to removal only Town Law, Section 27 (1), Public Officers Law, Section 5; town
upon charges and after a hearing has rIght to be represented by clerk continues in office upon expiration of his term until vacancy
counsel ....................•................•..••.•....•••.. 127 is filled ........................................•........•.• 101
Executive Law, Arbicle 13; persons employed as part time instructors Village Law, Sections 50, 52; errol' of board of trustees in specify.
at county fire training schools am State employees during time of ing term of office of village police justice does not affect length
such employment ...............................•.......••••. 122 of term of that office , . . . . . . . . . . . .. 13
Retirement rights of civilian employees at Camp Smith not affected
by fact of partial reimbursement by Federal government to State Town Board:
for expenses of operation..................................... 128 Education Law, Sectiolls ,253, 262; member of town board need
Right of State employee to hold office of Supervisor.............. 93 not be named and cannot be compelled to serve upon board of
trustees of free assoei.afion library .....•...................•.. 102
State Law: Town Law Sectiolls 80, 220; determination establishing fire district
Articles 3 and 4; paid volunteer firemen may properly extinguish 01' watm~ supply district must be made by town board, without
fires in. Fe,deral l;lUildings, if perm!tted by authorities iii charge referendum .. , ..................•................ , . . . . . . . . .. 107
and durmg such time are protected m the event of injury or death 122 Town Law Sentions 130(6), 133, 135; town board may enact ordi-
nance l'egulating and prohibiting dumping in the to~vn,' .. : ...•. , 72
State Prison Guard: Town Law, Section 130 (16); town board may not limit SIze and
State prison guard cannot at the same timo hold office of Justice of horsepower of outboard motor boats ..........•.. : . : . : . . . . . .. . .. 76
the Peace ..........................................•.•...... 94 Town Law, Section 202 (c); town board may not diminish the area
of a water distriet ....•.............................•....... 69
State Retirement System:
Town Clerk:
Retirement rights .of ciyilian employoes at Camp Smith not a'fJ'ected Justice Court Act Sections 472, 474; Town Clerk may not issue
~y fact of partial rel~bursement by Federal government to State transcript of jultgment where justice who rendered such judgment
or expenses of operatIOn ..........•.........••......•....... 128 is still in office but disabled , .................•. 147
Streets: 'I'own Law, Secti~n 27 (1), Public. O:~cers La:v, Section.5; Town
Clerk continues 11l office upon expiration of his term until vacancy
Public Housing La;w, Section 99; proposed street extension to Jj'ed. is filled .........................•........•.............•.•• 101
.eral housing pro~ect may be a proper city charge... • . . . . • • •..... 66 Town Law Section 36; collection of taxes by town clerk where office
VIllage Law, Section 1?9-mj village planning board may withhold of town'tax collector has been abolished ,...... 54
appr.oval of plat showing streets narrower than the minimum width
reqmred by the village •..............•...•.....••...••.....•. 48 Town Law:
Section 12 (1) ; use of the word "adjoin" relating to optional ehanges
Students: in classification of towns , , , : •....... , 32
Election Law, Sections 117, 151, 300 et seq.; absentee voting privi- Sections 21 21-a' powers and duties of elective assessor m ~OWll of
leges of member o~ armed forces ill time of war and of veteran the second elas~~necessity of appointment of board of review. . . . 48
SUbsequently becoming college student ...........•.....•••.•.• 148 Section 23' incompatibility of offices of member of town board and
fire distl~ict commissioner .......•... '.........••......,' . . . . .... 100
Sunday: SCI\tion 23; member of board of education may .be candidate for
Conservation Law" Section O,5~, Judiciary Law, Section 5, J'usbioo's office of supervisor, if elected, however should resign office as board 85
Court Act, Sect:on 270; civil compromise of conservation l'ellalty
may be entere~ into 0,;1 a Sunday or holiday .•............••...• 120
Se~~~:~~l~;. ~ffi~~s' ~f' ~~p~l:~i~~~ '~l~d 'p~~t~~~te~' ~~t 'i;;c~~~~iibi~:::: 165
Penal Law, Section 2140 j Town Law, Section 130; town hoard with- Sections 23, 33; l'ight of ~ssessor to serve as member of Board of 26
E<lucation at the same tune : .......•....................,
li
~ut dauthOl'lty to enact ordinance permitting the operation of tn-
ar parlors on Sunday S ec1·'non 27 (1)', reduction in salary of Justlce of .the peace because of 31
• • ".'- • • • • • • t o t -• • It 0-' t o . to ••• o ••••• , t ••
61
Supel'visor: ilt1~bili2tY7 (t10) ,.8~1~~n . ~ie~·il:· ~~~til;~ds' il~' ~ffir:~ ;;P;l~ '~;pi;·~tio;; 'di 'l;i~ 101
S oc ion
term until vacancy is fflled ....••.. : ···.•·····••·•··
Town La.w, Section 2B; offices of superviSOl' and postmastor not in- Section 34; no authority for the appOllltment of deputy town camp- r<
eompatible .....•.......•••.....••
Surplus:
'0' too '" ••••••• t ••••
165
S ~w~~~r 36 : . ~~li~dti~;l' ~f' t~~~~ b~' t~~~' 'ci~;l~ ~il~~~ ~ffid~
. . . ';f' 't~;;~
20
et ax colle~tor has .been abolished · .. :.. .. 54
Village Law, Section 127; surplus funds of village water de art- Sections 36 (2), 137; town hoard may not grant sxcluaive right to 39
ment may be transferred to sinking fuml for future improven;ents anyone to peddle within the town : : " .
111 S t' 80 220' determination sstablishing fire d1Stl'l~t or water
Tax Anticipation Notes: e~~lo~i di~trict 'must be made by town bo~rd, without ·referelldum 107
Local Fin~lllce Law, Section .24.00; fire district may t b S lP 84' qualificatiol1s of voters on bond Issues. . . . . . . . . . . . . . . . . 20
moneys III ,antlclpatlOn of taxes trom the town no arrow s:~ti~~ 10'2; authorization ~or tlfle paJ:~entl 0ffif expenses of town 27
• t • • • • • • • • • • • • • • _. 49 officer attending a cOllventlOn 0 mumerpa 0 cers .........••.. ·
 INDEX
197
196 INDEX
'rown Law, Section 23; offices of supervisor and postmaster not in- 165
Section 102 (9), (11); tl'ausportatioll. of p~rsons co:n~1Jitt~d to c?unty
jail by a justice of the peace for offenses ansing 1lI a vlll~g.e 'r(~~~~Pt~~~lese·(.ti~l; '23',' Edl{;~ti~~ 'L~;\;,' s~~ti~~; 2112'(3')';' ~~l~lb'e'r' ~.~
which has no police justice rests upon the officers of the Il1Un~Cl­ , board o:E ed~(\ation may b'e candidate for office of ~UPCl'vlsor, I 85
pality entitled to the fine, penalty, etc. for the offenses for which elected, however should ~'~sign office. as tom'd SnCl~ber . 2102' . 2i6~ ;
the person is charged ...................................•.... 33 'fOWl! Law, Sl1(Jtions 23, 3,1; Educrl,onf j,,'tw, ,1 eCE ~l~~lcatio~ at the
Section 111; adoption of budget for tOW1~ recreation com~ission. .•• 96 I'i.ght of assessor to serve as mCUl)01 0 oal( 0, ••••• , , • • •• 26
Section 130; town board without authority-to enact ordinance pel" same time ., ... , .. , ..... ,.':.,.,":'.).,,"\: 'f' ~f' ~olunteer fn-e
mitting the operation of billiard parlors on Sunday ..........•. ,. 61 ~I'owl! Law, Sections 175,UDi. 17?(1l),(11-a,,' c.ne f r fire eommis-
Section 130 (6), 133, 135; towu board may enact ordinance regulat- clep'll'tment sorvbIO' a fire d1strwt may he c..uldldate 0 104
ing and prohibiting dumping in the town , . . . . . . . . . . • •.• 72 .' b t l ouIt not occupy both offices...... , ...... ···· .... ·
Seetion 130(7); limitation upon town board to restrict parkiug all Slone1', Us St: ]~r:('» and 176(11 n-ll.)' 'lire commissioner should
'I'OWJl Law ee IOn Ill.J "., ,., t 11
its streets ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . not at tile same time act as chief of t.he fire departl1loU " " . :ll~' e
Section 130(Hi) j town boui-d may not limit size and horsepower of Vill:tgo Law Section 42; holding office of town attoruey and VI g 57
attorney by the. same 'pe~1o.n, . , , .. , t:l:lil;ty '0:£' ~ffi~~s' 'of' ~~p~;~~~~,
outboard motor boats ...........................•...........• 76
Section 170 (1,2); proeedure fa!' the establishment or extension of Villllg'O Law, SectIons 42, .'! lllc.ompa 1 , .. , , , 95
fire protection districts .................................•...• 80 and village street eOl1lnllSS10 ne1 , .. , ... , .. ,"',.
Sections 170, 173; change of name of fire district which has been
extended ......................................•....•...•.•.• 75
Sections 174, 17G(1l-a), and 176-aj use of siren on automobile of UlHlortaldug: file of official umlertaking by acting'
chief eugineer of fire department , , .. , . , •.. " 40 Village Law, Sections 58, 187; ..... " .. , .. , , .. , 88
Sections 175(3); 176(11), (ll-a) j chief of volunteor fire depart- police justice .. " .. ,., .... " .... , .. ,." ..•.
ment serving a fire district may be candidate for fire commissioner
but should not occupy both offices, ... , .. , ......•.•.•.. ,...... 104 UncmploymBnt Insurance Law: " d' llf d for unemploy-
Sections 175(3) and 176(11, Ll-a.) j fire commissioner should not at t' d b loyor at age b5 not isqua me 121
the same time act as ehiefof the :fire department, .. , ... , . . . . . . .. 11 PerSOll re Ire y emp "f 11 11d willing to accept employment, .
Section 176, subd, 10; minimum age which persons must attain to Se~i~l~ ~~~I;ra~i~I~~I~~~ct:lllfir~~:n~' to ullelllploYlllCl1t insurance beneftt.s 58
become members of volunteer fire company, . , . , .... , . . . . . . . . . . . • 87
Section 176 (10,12,22), Section 184; manner in which lire protection
can be afforded that portion of territory within town outside cor- LT.S.C.A, Title 17 : r: . ,). Oonservation Department may allow
porate limits of village .. ' .. , , , , ........• , .. . 39 Sections 1 aud u,subd, (g '1" Ie of Father Jogues Monument
Section 176(1l-a); nominations for office of chief engineer of fire Canisius. College ,to havle r~p le~ .11la~~pyright to people of State of
district must be confirmed by board of lire commissioners of dis- at Lake George If scu ptoi aSSIgns , , . . . . .• 151
tl'ict .,."", .... , .... " .. ,., .... " .... ""."., ... ' .•.... , ., 66 New Yorlt .. ,."., ", "., ,.
Section 176 (18); amount which fire district. may expend without
adopting proposition ',.,., , ......•......... ,...... 81
Section 184; amount of proposed contract for fire protection should Vacancy: , t: 40 43 46' temporary appointment of inspector 125
Electwn Law, Se(1 IOns , , , ' . , . , .. , .
be set out in notice of hearing thereon ,. .. . . . •. 86 of election to fill, vacancy ., '0' . ili4' g')': 'l;d~i~~tioll of candidate
Section 184; right of to~vn b?ar~ to contract for lire protection 011 Election Law, SectIOns ~39, f4,
"o)lec1 member of party maklllg
behalf of a fire protectIOn district . , .... , ... , . , ..........•..... , 5il for public office who IS no all em f such nomination .. , .. , ., 84
Section 1~8 «1) g), 201; ~own board n:ay by ordinances require that nomination-failure to :tile ac~epci~;::rso Law Section 5; town c]erk
defects In sewer eonnections be remedied , .. , ,...... . .. 80 ']'own Law, Section 27(1), P,,:bh~ f his tel'l~ until vacancy is filled 101
Section 198 (6); lighting' district may be extended to include private continues in offic~ upo~2eXB~1'lL(jlfll ~O. effe(~t of elect.ion of village
road .. ,. , ,, , .,. '" .•,'" . , , ......•.. " . •. ..•. . . . ..
Sect.ion 202 (c) j town board may not diminish the area of a water
76 Village Law, SeCt.lO nS ' ~; p]'~I)er 'qualifications. , ... , ... . , , ... , 81
trustee who does 110 t posse
district , .. ,.,' , ,., , ,,., , .. , • . • . .•• 69
Se~tions 210-216;, to:vn board acts as appointing board of all special
Improvement districts ".,., .. " " ,..... 90 Vltc,ations: . t' 92 county highway employees em-
Section 291; nppropriation of town funds to aid in the care and General Municipal ~aw, ~e~ Ion b i aid for holidays if credited to
maintenance of a privately owned cemetery. , , ,,..... .• 37 ployed on a 1?er dIem basls may e ~ . , , . . . . . . . . . . . . . . . . .. 63
Section 291(1); town funds may properly be expended to care fo~ annual vacatIOn ,.. , ,.
an abandoned public cemetery , •...•...... ,.......... 67
'fwo Offices: Vehicle and Traffic L,aw: ot be displayed on privately owned motor 55
Section 15; red hghts may n , lice s uads ..•...... , .
Electio.n Law, Section 30; Justice of the Peace may serve remainder
of hIS term and hold office of election commissioner .... '. . . . . . . • . . 3 Sections 51(2) and 20(~) [ ] \
t
vehicle of a memb~r of re. ~~onresilent under eighteen years o~
tl 'State may not operate motor
Ithaca City Charter, (Laws 1908, Chapter 503) . the same person may age issued operators Iieeuse {o ]le\as been issued a. junior opel'-
occupy ~he officesof city. ward supervisor and member of the board vehicle in New York State un ess ie . ' , , .••••• , 121
of,publIc works of the CIty at the same time, ,
J~lstlee of the peace may holc1 office of member of Board of Edueatio~ H7
, . , ' 71 ators license by. New York ~~:ll~ ~l:ciih'a;;c~'
Section 54; adoptIOn 0f spee d 1
bY'
~ili~g~~signs desig-
, .. , .
99
~lght o~ the State employee to hold office of Supervisor.......... 93 nat.ing speed zones .. , .... ,.,.,. t' d f;~rh' p'al'king meters " 94
Section 54; disposition Sf ~rso~o~~l~a~e chief of police toregu]ate
State pnson· guard, cannot at the same time hold office of Justice of
the Peace, .': , ,. , . , , , .. , .. , , ,.,• 94 Sectiolls 5'.1, 86(1); au 101'1 Y , ,........ 79
Town Law, SectIOn 23; incompatibility of offices of memher of tOWl; parking •... , •. ,., .•... , ....
board and :tire district commissioner ...........•••• " ." .'~ ••••• 100
 198
INDEX
INDEX 199
Section 70 subd 10 a d 11 ' ' .
for viol~tion ~f V ~l'l ,no requiremanj for recording conviction
f e ue e and Traffic Law on out of St t Ii Sl.'ction 42; provisions aJi'ecting' unofficial primaries in eities, tOWIl
a 1l;0lll'esident operator. Out-of-State tr :ill
consHlel'ed by New York Justice'
. t. -
a e lcense
sra c. ~onV1C Ion may not be uurl village callcuses-eligibility to office . , .. ' .... , ... ' .... , . , . . . 21
com-icted bcfors him is 'J suh In dffeterdnumn g whether a person Seeti.oll '12; property qualifications required of a village trustee ..... , 1(j
S t' . c. sequen t 0 en er S(lctions 4.2, 4:1; incompatibility of offices of supervisor and village
e~e;~~t~e\~t8); use of siren on automobil., of 'ci;i~f' ~~gil;e'e~: ~£' :fi~.~ 146
0 0

street eommissionor ...•...........•.•........................ 95

..... ,.,., .. , .. , ,... 40 Sections 42, '17; police justice need not be owner of record of real
property - , , . . . . . . . . . . . . . . . . . 2!l
Vetel'ans: Bcctions 42, 59, 61, 80; effect of election of village trustee who does
General Business Law Sect' "2.' not possess proper qualifications ................•.•........... 81
peddle by New York' Ooun~~noi~ ,j ~ssua~c~ I of ve~eran's licenSe to Sections '12, 11';7; village Police Justieo must be a resident of the
General Business Law Section . III { ,,~ l;L resic ent ?f Bronx Oounty.: 5il vill age. Allting Police J'ustlco may be non-resident. . . . . . . . . . . . . . .. 61i
license. notwithstan(ling the se;is'te~c~ l~fu~UlC~ of,;.eterans peddling Sc~(·,tion 4;.1; retiree! village policeman may serve as mayor of village
regulatlOns' govel'lling peddlers oca 01 llumCes, rUles or aud rneeivo salnry thereof: without loss of retirement pension or
General Business Law Sectiol 32' V:I'I' ., '," '.' '" 59 annuity , ;.. 36
villag'e lllay not by' 0 di 1 , 1 age Law SectIons 8H(4,'l) 91(1)' S(~ctiOI\S 43, 60; manuel' in which village treasurer may be removed
, l' lllances pl'ohib't Ii ,",
fron~ peddlhig within village-li n 1 a llcel~sed crlpple~l vetemn f'rom office 41
required to pay additional lie c~ > se?, w 10 IS n?t. It ,crIpple not Sections 44, 4,'5; resolution of villnge board of trustees changing
he peddles ,. enss ee 111 each mUl11clpalIty wherein number thereof not subject to referendum or election 101
General Municipal Law Sectj~""':'" ',: , ' .. 46 Sedious 50, 52; errol' 0:(' board of trustees in specifying term of office
not affected by life ~Isul'anc~ 148, burial allowance for a veteran of vlllag« polieo justice does not affect length of term of that offiee 13
.......................•......••. 57 Section 51, 53-!t; village officials may serve as inspectors of election
Veteran's Organizations: and secure sig-natures to nomirtatiug petitions 24
Seetions 53, 5Ba; dcterminntion as to validity of nomination for vil-
Villag'(; Law Sections 1 a 89(3)
right of village board-of tru~t~e;~~e:~~i M,TiciPllJ. Law, Section 77;
lage ottico must, in the first instance, be made by the village elerk , . 24
Section 63,11.; procedure for the invaliclation of nominating petitions.. 24
erty to veteran's organizatio.n 01 ease VIllage Owned prop-
See.tion 53-11.; voter may not cla.im place of business as residence for
·.·.0.0 .•••.••.•• 0.. 1..••••.•••• 92
voting purposes when he hnbitua.lly resides at another place ... '" 129
Village AttOl'l1ey I Seetion 56; proposition to establish a public library may properly be
Village Law, Section 89 (11) " ill submrbted to the electors at village election. . . . . . . . . . . . . . . . . . . . . . 9
v age attorney not a village officer Sedions 56, lBO, :3'18(4); proposltion to annex terrltory to village may
17 or may not be submitted to the electors of the village , .. 19
Village Board:
Sections 58, 187; filing of official undertaking by acting police justice 88
Village Law, Section 89(3) . villa ge. boar , Seetions 80, 188, 188-11., e, :f.; supervision of local police department.. 28
owned real property not 'h ld f oard o~ tlUstees may sell village Seetio1ls HI, 89 (21), (21-11), :l33; power of village mayor to authorize
e or a public use
Village Clerk: . . . .. . . •• . • •• • . . . • 74 expenditure of village moneys ..•..........•................•. 55
SectIOn 80 (3); village board of trustees may sell vilhtge owned real
11l'OPCl'ty not held fora public use............................ 74
Village Law, Sections 53 53-a. EI . Seetions 89 (8), il32 j designation of official newspaper of village by
87, 90,141;. determination as 'to v~~i~~f Law, S~cti~ns 67, l:lS(2), hoard of trustees of which village officer is a stockholder.... , . .. 36
office must, III the :first instan) d y of nOmlllatIon for village Ser,tion 89 (11); village attorney not a village officer..........•.. , 17
ce, re rna e by the village clerk .... " 24
8e(',tion 80 (24) ; village board of trustees may enter into contract for
Village Elections: tlro protection with fire department ••.......................... 4
Chi.ef of police not disq'ualitied from ,I., . . Section 80(30),(33),(55),(59); right 0:1: village to enact ordinance
tlO~ because he attended and so p~ fOlmlllg dutIes at village elee- reluting to sewage disposal hy property owners ..............•... 63
wh~ch nominations were made ,~lV~ I as Secretary at meetings at Sections 89 (42), 1(h~; removal of snow and rubbish by village ..... , 13
ElectlO,ll Law, Section 200; tirr:.eo~; fe ated by marriage to candidates 24 Seetions 80(48), 91(1); village may not exact unduly high license fee
to VIllage elections or employees to vote applicable for hawking 01' peddling in order to stifle competition... .. . . .••.• 70
...•...•.•..••.......•••••..•..•... 124 Sections 89(4:8), .91(1) j village may not by ordinances prohibit a
Village Law: lleensed crippled veteran from peddllng within village-licensee, who
is not a oripp lo not required to pay additional license fcc in. each
Article 7-A; members of munici al boar . , municipality wherein he peddles .... . . . . . . . . . . . . . . . . . . . . . . . • . . . • 46
~ounty may not be interestedPin m: l d; l~ VIllages in Westchester SeCltion 80 (52); ordinance authority of village to adopt ordinances Ii-
e.verages nu ac ure or sale of alcoholic eensing and regulating junk dealers 47
Sec~lOns I-a, 89(3) j l'ight of vill~ ". . . . • . . . . . . . . . • • • . . . . . . . . . . . . . . 27 Soctions 90, 95; suffleienny of pUblication of summary of village ordi-
S v~~lage owne~ property to vetel~~l,boa~d o~ tr~stees to sell Or lease nance ........•.................•......•..............•..... 62
ec I?n 41,; :'esldents of Madison Bar: olg~n~zatJon:................ 92 Soctions Oil, 338; member of Town Police ]'orce may arrest a person
pmate lImIts of Village of S k acks Alea whIch IS outside cor-
vi~lage election ~~ .ets Harbor not entitled to vote at in a village within the town for violation of village ordinance.... 68
SectIOns 41, lS9·a·' quall'ficat'Ions .. Sections 125, 126 (6) ; rate of interest upon propel'ties sold at tax sales 3::1
b of . .. .t .. .. . . .. .. • .. . " ....•.• 23
Section 127; surplus funds of village water clepartment may be trans-
S o.nd resolution of a village' vo ers Who may vote upon' ~
ectlOn42; hOlding office of t . . . . • . . . • . . . . . . . . . . . . . lOS ferred to sinking fuud fOl' future improvements... . . . • . . . . . . . .. 111
same person ...••....... ~~vn attorney and village att~;~~y b'y h~~ Section 178; method of adopting change in village zoning ordinance 109
•.••••••......•.•..•...•.••••.•••• 57 Sectioll 179·]); manner ill which chairman of village board of appeals
should be designated •...........••.........................• 92
200 INDEX INDEX 201

Section 170'111; village planning board lUil,y withhold approval of Voting: ,.' " " . . . . " . 'f.
plat showing streets narrower than the minimum width required by, Constitution, ArtIcle II J SectlOu I J F..lectiou La",. SectJ()lI~ 1~~, Ih',l,
the village .. """ ... """" .. "., .... "",., .. , •.. '"..... 4ii alien woman who acquired ci~iz~nship by m!tl'rylJl!j U. s. cltI:e~~. l\~
Sections 181, IfJO; transportation of persons committed to county jail 1021 before attaining her majorlty, must IlI'ollure literacy (~(,'rtJlll atl
by a justice of the peace for offenses arising in a village which has in order to be entitle d t 0 voe t .... ;, .. : ........ ·,'··: .. ·".:· .. : 15fi
no police justice rests upon the officers 0'£ the muuieipnlity entitled ConstitutioJl, Article II, Seetion 2; Election Law, S"e!Hlll 11/ \1) •
to the fine, penalty, etc, for the offenses for which the persoll is ersons on honeymoon are not entitled to absentee ballots .. , .. :.. 161
charged" , ., " .. , " , , ,'.' , " " .. ,. " " " ." , .. , ' .. ,. " , •. ' " ;;3 Eetuc;ltiOll Law, Section 2012 j l'e~idcnt8 ?f :Federal homung !,J'uJrct
Section 18G; process issued by village police justice ill civil cases must may vote Itt central school distnct election .. " ,., "",' ,.,., ..• ,. 4::
be served within village territorial limits, , .. , . , .. , , , ..•...• , • ,. 152 l"lcctiou I aw Section 117; a qllalllied voter 1I0t an inmate of a
SectiolJ. 188; village trusteesmay not be indirectly OJ' directly inter- " ,'".'tcrlUls''' hO~lJital is not entitled to an absentee lJUUot Oil the gJ'OlInd
ested in the sale of alcoholic beverages . , . , , . , ... , , . , . , . , . , •.. , • lW -
that he is an invalid ,."., .. " .. ",.,.,.".,.", .... :', .... lfi7
Scctiolls ISS-a,b; residence roquirementsua a. prerequisite to appoint- lection La~, Sections 117,118(2) j determining right of upptieaut to
E ., 158
ment as village policeman ',.".".",.,' .. ".,."., ..... , •.. ,. 40 absentee ballot .,.,.""", ... ,.".,., ... ,", .. " ....:' ... ,'.
Sectioll 200; expenditure of tax on premiums 0:1' policies of foreign t ' law Hections 117 151 300 et seq.: absentee votlllg priv-
EI
, ec ion " " , f' , t' f war and of veteran
and al icn insurance companies to repair firehouse, " .... , " , •.• ,. 4·3 ilcges of member of armed orccs ll\ rme 0 , 148
Section 200; rasidenee qualificntlons of volunteer firemen, ... , ..• ", 21 b tl becoming college student, .. ,., .. , ....• , •• " .•• , .•
Sections 200 (5), (6), (10), 202, 204, 205; membership of persons re- st~ ~equ~~ ! S ction 150' Board of Election inspectors n~ay ac-
siding. ill territory in which fire protection is furnished by village ElectlO~l '~\~l' t to -otc fro~ family home 0:£ person voluntarily sep-
ternUlle rrgu 0, , , t 149
fire department .""".,:,."., .. """ . , , .. , , . , •. , , . , , .... '. 44 t d f' his wife but :£urnJshmg suppor ",' .
Sections 200, sulnl , 10 j 200; residenee requlrements of: member of ara e ! om ,I. 150' Constitution Article II, Seetton 1; re-
village fire department",., .. ",., .. ".,.",., •....... , ..• ,. 110 Elec~ion L~w~f S:~~~?I:llontl;S residence in' order to qun.li:£y :£01' voting
Section 224 i methods of paying'. cost of extension of Village water qmremen , ur eithcr county city or village ... , ••... 158
system,.".", ,., •.. ,., .. ,. ,. '.'"".',.'.' ,.,. In is ~utis~ed b~:c~~~~enlc;1 ~I\.:~illent of tlAs State cntering Feder~l
Sections 228, 229; authority of village to enact ordinance to enforce Elec~I,?lle o~~~ide State does' not lose his rcsillence solely because of hIS 161
the co'lleetion 0:1' water rents by cutting off water aupply , . . , • . .• 98 SOlnc t t h employment ., ,, , ..
absence incic1en , 0 sue. tl in lo~~i 'ei~~t'ions by F'ederal em-
Section 232 j village may only sell surplus water outside its corporate Election La,:,. Section 1.~lJj v~ II~gOI'cign State is strong indication of
limits .'.' .. ,.,., .. , ... ,.,."",.""".".,." .. ,.,.,.,. , . . • 4 levee resldmg tempol an y III 131
Section 260-b; vil1age may not furnish sewer service : outside of P . f residenc~ in this State .,." ... ,." ......•..•
abandonment o. 1 2 Civil Service Law, Section 14, Penal Law,
boundaries of State ,."".",.,."", ... ,., ... , .. ,.".",.,.. 75 Election Law, SectJOIl c5 l' f Criminal Procedure, Seetions IH4·81!6,
Section 332; contracts between village and police justice are void, . , 108 Seetiolls 2380-2383, 0< ~ 0 £ armed forces on civil rights 135
Section 332; village trustees may not lease 01' purchase real property effeet of dishono~'able1~tSC~;~g~3{?~lspectors of election shall not
from village ,.", .. ", .., .. " .• ,.""", .. "".',., .. , ... ,'.... 15 Electien Law, ScctlOns " f ~I g t~ answer any question upon chal-
'Village Offices register nam~ of person Ie USln . ,•,. ' , .. , , , .•• , .•. 156
Election Law, Sections 143, 144; time and place £01' filing petitions lenge affidaVIt :', .. , '3' '209' 33i' ~ubd 2' voter cnrolling as mem-
Electioll Law, SeetlOns 17 J J pel il1SP~ct~rs to receive his 'Vote at
for independent nominations for village officesJ to be filled at an- bel' 0:£ pol! tical party may lc?m e docs not appear on enrollment
nual village elections . . . . . • . • . ,
Of • • • • • • • • • • • • • • • • • • • • • • • • • • • • • as . 'I
primary e ec lOll, t' although us
t nam t' ' .... , . , ••...• 157
Villages: 'hook, by aPSprot:!?riateoo ~oW~e a:o~,o~~t'i~g' by' ~~pl~yees applies to a 119
Code of CrimiJHLI Procedure, Section 6 j Title III, Part V; village ElectIOn Law, ec lOll, ... , ... , , , , ........••..••
cannot he substituted in place of People of State of New York on special election ·,··,,···"'·'·ff' £.: ~mplo:rees to vote applicable
appeal from conviction for violation of local speeding ordinance. Election Law, Sec~ion 200; time 0 01, , • , ••• , ••••••••• , ••••••••• 124
Appeal should be' handled by District Attorney .... , .. ,.,.,., •. 162 to village elect~oJlS '0': L~b~r' La:;; Article 6j Penal Law, SectIOn
Election Law, SectIon 22" '11 withheld because of employCt;s a~-
Village Treasurer: 75.9 ,' claim for1 wages lllega y:£ t' g are recoyera1lle bv ciVIl sUIt
Village Law, SectiollS 43, 60; Puhlic Offillers Law, Section 36; manner senting themse ves f or purpose 0 VO lU , .. , , , .. , , , , • , •.•. 170
in which village treasurer may he removed fr01l1 office". , . , . , . , .. 41 through In:ivate eounsel p'" i 'i
',~' 's~ction 759' Alcoholic Bever-
Electioll Law, Section ~t~6; 1~~(5) ~ah~rtenller not ~ntitled to be paid 164
Volunteer Firemen: age control Law, Sec Ion , , , . , , , .. , .........••• ,
Genol'lll .MUJlicip!tl I,aw, Section 20G; hene11ts of active members of .
for time off to vote :' '.' , , , , , 'L~~; 8~~tion 759 j employer is e!1-
vohmt()()J' (h'o NlIllpanies adUI\lly (!ng'agod ill :Oghting fires, regardless Election Law, Section 226, ~en~~,s wages for ahsence front work 1Il
of w1lether having eurned their llxemption certificate 01' not.... .. 97 titled to deduct :£J'OHl emp, O! ur o~e 0:£ voting, ... : .. , . , , ..•. , .: 166
Gencl'lt.l MllJlieipal Law, Section :lOGJ Workmen's Compensation Law, excess of the houl'S :fixet~' f~IG ~O PVillag e Law J Sec.bons 41, ~39-af'
Sections 2 (3,4,G) n «houps 17 & If), 10 and 14-a; benefits are t upon a. bond resolutlOll 0
ullowe<1 volulltee1' fil'elwlll und. their families evon though such L.ocaI Finallce Law, Sec \On "
atl'o·.IIS 0:£ voters who lUay vo e ...•..•..• , • ,. 103
qua l.Ific· , .. , .. , .•. , , . . • f 1 ti 150
volunteer fiI-mnen are 111ICI61' the age of 1.8. , . , .. , . , . , .•.. , . , . , .. 89 a village ... "".,., : ' : . '.]~tid; ~f voters by inspectors 0 e ee ,on
State Lt\w, Articles 3 unit '1, General Muuicipal Law, Section 209; Penal LawJ Section 772 j lllhm~~ thereafter pardoned or given cerr:fi~
paid volunteer firemen nmy properly exting'uish fires in Feclel'al Persoll convicted of fetlOny tnot exhibit such clocnment to inspec or. 150
buildings i:E jJeJ'mitted by authorities in eharge and dmillg such £ good COllduc neec .. , ..........•..
time are' IlI'otceted in tIm evont oE injUl'y 01' death., ... ,.,...... 122 cate ,0 of registration .".", ..... :.,' B~l:J"acks Area which is
'rOWll Law, Section 170J Buhd, 10 i miniinu1l1 age which persons must V~;ag~t~w, Section ~l \ res~dvri~a~e~;r~~cket~ Harbor not entitled 23
attain to become members of volunteer fire company, ...•.• , •• ,. 87 tside corpOJ'ate hnn,s 0 ... , . , •..•..•.••••.•.••...•
Yillage Law, Soction 200; resideuee qualifications of volunteer firemen 21 ou ' t '11 e eleetlon ." . , . , •.•
to vote it Vl ag
202 INDEX

Village Law, Section 53-a, Election. Law, Sections 150/ 330 .et seq.j
voter may not claim place of business as residence for voting pur-
poses when he habitually resides at another place ..•...... , •..•. 129
Voting Machines:
Election Law, Sections 52 (11), 243, 265; Tenting of voting' machines
by village .. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . .. 16
Election Law, Sections 70, 250, 266, subd, 2; arrangement of local
questions . submitted to voters of a city is within discretion of
Board of Elections ........•...................••..•......•• 147
ElectiouLaw, Sections 241, 248, subd, 1, 201, 20G subd, 2, Alcoholic
Beverage Control Law, Section 141, subd, 3; procedure in printing
ballots for voting upon local option questions.................. 150
Wages:
Election Law, Section 220; Labor Law, Article 6; Penal Law, Section
759; claim for wages illegally withheld because of employees absent-
ing themselves for purpose of voting are recoverable by civil suit
through private counsel ...........••.......••......•.•••.••. 170
Waiver:
Waiver of right of jury trial by Corporation Counsel . .•...•••.••. 100
Water:
Vi~lage Law, Se~ti?n 232; village may only sell surplus water outside
Its corpcrate limits ..........••.•.............•........•...... 4
Water District:
Town Law, Sections 80, 220; determination establishing fire district
01' water supply district must be made by town board, without
referendum •....... . . • . . . . . . . • . • . . . . . . . . • . . . . . . . . . . . . • . . . • •. 107
1'own Law, Section 202 (c); town board may not diminish the area
of a water district ...••.............•.......•.••.•....•••..• 69
Water Rents:
Village Law, Sections 228, 229; authority of village to enact ordinance
to enforce the collection of water rents by cutting off water supply 98
Water Supply:
Clarification of definition of "Public Watcr Supply" ....•.••..•.•• 142
Village Law, Section 224; methods of paying cost of extension of
village water system ...........•.........•..•..•..•.••.••..•• 91
Wayward Minors:
Ohildrens Court Act, Articles 1 to 4 inclusive; Oode of Criminal
Procedure, Sections 659, 600, 061, 002-e, 870, 913-a to 913-d inclu-
sive; judge of Children's COUl't has no power to commit a child
to a State hospital for observation as to insanity unless child is a
wayward minor ..........•.•...........••......••.........•• 144
""Vords and Phrases:
Public Health Law, Section 10(6); use of word "Board" in connec-
tion with acquisition of lands for the expansion of the Roswell Park
MelllorialHospital ................••......•...••..••.......• 159
Workmen's OompenaationLaw:
Insurance coverage of Assistant Corporation Counsel ........•..... 35
Sections 2(3,4,5) 3 (Groups 17 & 19), 10 and 14-a; benefits are al-
lowed volunteer firemen and their families even though such vol-
unteer firemen are under the age of 18 .....•...............•.. 89
Section 3 i expenditure of village funds to purchase insurance to pro-
vide benefits for its firemen in addition to the coverage under the
Gen. MUll. Law and Workmen's Compensation Law not pel'mitted.. 26
Zoning:
Villa~e Law, Section 178; method of adopting change in village zoning
ordinance •...............................•.•.••.....•....... 109