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In re Ross

Supreme Court of New York, Appellate Division

July 8, 1954

In the Matter of WARREN ROSS et al., Respondents,
v.
LEWIS A. WILSON, as Commissioner of Education of the State of New York, et al., Appellants.

Page 523

APPEALS from an order of the Supreme Court at Special Term (BOOKSTEIN, J.), entered February 10, 1954, in Albany County, annulling a determination of the Commissioner of Education of the State of New York which had sustained a contract made by respondent Board of Education to sell the real property of a discontinued school of the former Common School District No. 1 of the Towns of Ellicott and Gerry in Chautauqua County to the Church of God of Ross Mills for $2,000.

COUNSEL

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington for Lewis A. Wilson, as Commissioner of Education, appellant.

Page 524

Robert G. Wright for Board of Education, appellant.

Alton R. Erickson for respondents.

HALPERN, J.

This is an appeal from an order of the Special Term, annulling and setting aside a determination made by the appellant Commissioner of Education, which had upheld against the challenge of the petitioners-respondents, the action of the appellant Board of Education in contracting to sell certain real property.

The facts are not in dispute. The appellant Board of Education is the Board of Education of Central School District No. 1 of the Towns of Ellicott, Ellington, Poland, Gerry and Carroll, Chautauqua County. Included within the Central School District, is former Common School District No. 1 of the Towns of Ellicott and Gerry, known as the Ross Mills District. The district school, which had been maintained by the Common School District up to the time of centralization, was operated by the Central School District to the end of the school year 1952-1953.

In February, 1953, the Board of Education called a special meeting of the qualified voters of the former common school district, to consider a vote upon a proposition to close the school and to sell the school property.

In the notice of the meeting, four propositions were listed: (1) Should the school be closed? (2) Should the school property be sold to Ross Mills Church of God for $2,000? (3) Should the property be sold to Ross Grange for $3,000? (4) Should the property be sold by public auction to the highest bidder?

The notice stated that the vote would be held upon proposition No. 1 'and as many of the succeeding propositions as is necessary to dispose of the property'.

At the meeting, the proposal to close the school was carried by an overwhelming vote. Then proposition No. 2 was submitted and it was carried by a majority vote. The remaining two propositions were not submitted.

As appeared from the notice of meeting, the Board of Education had received an offer of $2,000 from the Church and $3,000 from the Grange, prior to the calling of the meeting. At the meeting itself, Warren Ross, one of the petitioners, made an oral offer of $4,000 and he subsequently confirmed this offer in writing. Nevertheless, a majority of the qualified voters present at the meeting decided to accept the $2,000 offer made by the Church.

Page 525

Thereafter the Board of Education, pursuant to the action by the voters taken at the meeting, entered into a contract to sell the property to the Church.

A local assessor had appraised the property at the request of the Board of Education prior to the meeting and he had reported that the property was reasonably worth $2,500. After the meeting, the petitioners caused an appraisal to be made by a local real estate broker and he appraised the property at $4,200.

The petitioners appealed to the Commissioner of Education from the action of the Board of Education in contracting to sell the property to the Ross Mills Church. The commissioner dismissed the appeal and sustained the action of the Board of Education. Thereupon, a proceeding was brought under article 78 to review the determination by the Commissioner of Education and, in that proceeding, the Special ...


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