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MATTER VILLAGE MASSENA v. JOHN P. LOMENZO (09/11/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY 1968.NY.42841 <http://www.versuslaw.com>; 294 N.Y.S.2d 657; 58 Misc. 2d 40 September 11, 1968 IN THE MATTER OF THE VILLAGE OF MASSENA, PETITIONER,v.JOHN P. LOMENZO, AS SECRETARY OF STATE OF THE STATE OF NEW YORK, RESPONDENT Dutcher, Dutcher, Witt, Sidoti & Considine (John C. Holme, Jr., of counsel), for petitioner. Eugene L. Nicandri, Village Attorney, for Village of Massena. Louis J. Lefkowitz, Attorney-General (Walter J. Hogan of counsel), for respondent. De Forest C. Pitt, J. Author: Pitt


De Forest C. Pitt, J.

Author: Pitt

 The petitioner, Village of Massena, New York, seeks by this article 78 proceeding to compel the respondent, Secretary of State, to accept for filing its Local Law No. 1, 1967. The local law in question consists of a complete revised charter, ordinances and local laws with repealers of all inconsistent ordinances and local laws then in effect. It appears to be a complete codification of all laws of the village. The respondent, in addition to answering the petition, has moved to dismiss the same for insufficiency.

The court is of the opinion that the petition should be dismissed. From a reading of the same it is obvious that the proposed law contains matters requiring either mandatory or permissive referenda and that more than one subject is covered. In the absence of referenda and by covering more than one subject it appears that the law is not ready for filing. (Municipal Home Rule Law, §§ 20, 23, 24, 25, 26, 27; Matter of Astwood v. Cohen, 291 N. Y. 484.)

The court cannot agree that the Secretary of State may exercise no discretion in the filing of local laws so as to give rise to the unusual and drastic remedy of mandamus. (Matter of Noonan v. O'Leary, 284 App. Div. 646; Matter of Glen Cove Shopping Center v. Suozzi, 8 Misc. 2d 247.) Having discretion in the matter and noting the above it may not be said that the refusal to file the local law was an arbitrary or capricious act. Accordingly, it is felt that the court should not intervene. Submit judgment dismissing the petition herein.

19680911

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