Opinion
February 17, 1939.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ.
Proceeding to determine the validity of a petition for a permissive referendum filed with the clerk of the village of North Tarrytown. Order confirming report of referee and determining that the petition is invalid unanimously affirmed, with ten dollars costs and disbursements. The total number of resident qualified electors must be considered in determining whether the petition for the referendum had thereon signatures of twenty per cent of the qualified electors. Those who are qualified electors are prescribed by section 41 of the Village Law. That section does not limit those qualified to owners whose names appear on the last preceding assessment roll of the village. There being no such limitation, all of the qualified electors, whether their names appear on that roll or not, must be considered in determining the number upon which the twenty per cent requirement of section 139-a of the Village Law must be computed. In this respect that statute differs from chapter 907 of the Laws of 1869 where those who might act was limited to taxpayers "whose names appear upon the last preceding tax list or assessment roll * * *." The court, therefore, properly found that the total number of qualified electors was 1,228. To be valid the petition herein must have 246 valid signatures. The total number of names thereon was 289. There have been 66 struck therefrom. This left 223 valid signatures. Of the remaining 66 challenged names the petitioner conceded on the hearing that 24 were invalid. The petitioner on this appeal does not invoke an additional 15 names which were struck from the petition. Deducting this total of 39 leaves 27 signatures from which the petitioner must seek 23 in order to make up the requisite 246. The name of Brichter was improperly struck from the petition. The addition of this name reduces the number needed to 22. There is a group of five names in the remaining 26, Sullivan, Stronski, Edgar, Flanagan [Flannigan] and Bonomo, which is affected by a common factor. The names of these individuals were placed upon the petition by another when they were not present. They did not adopt the signatures which purported to be theirs by any manual act such as the placing of an X mark. ( Matter of Ind. League Nominations, 51 Misc. 486, 489.) These signatures were invalid and were properly struck from the petition. ( People ex rel. Haines v. Smith, 45 N.Y. 772, 784.) This leaves but 21 names still to be considered, and as 22 are essential to make up the requisite 246 the petition is invalid. This view makes it unnecessary to consider any of the other signatures invoked by petitioner.