#### George W. Smith and Norris *V.*Randall, App’lts, *v.*Wilbur H. Proctor *et al.,*Trustees, etc., Resp’ts.

*Supreme Court, General Term, Second Department*

*Filed June 25, 1889.)*

Schools—Erection or school house—Authority to issue bonds—How determined—Laws 1864, chap. 655, art. 2, title 7, § li), as amended by Laws 1881, chap. 528. ’

Laws 1864, chap. 555, art. 2, tit. 7, § 19, as amended by Laws 1881, chap. 628, provides that whenever a majority of all the inhabitants of any school district entitled to vote, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual or adjourned school meeting legally called or held, shall determine • that the sum proposed and provided for (the erection of a new school house), shall be raised by installments, it shall be the duty of the trustees of such district * * * to issue bonds or other evidences of indebtedness therefor.” *Held*that a vote by a majority of those present, even if such majority is less than the majority of the whole number of the inhabitants of the district is sufficient to authorize the issue of bonds for the purpose.

Appeal from a judgment entered on a decision made at special term, dismissing plaintiff’s complaint.

*Henry A. Montfort,*for app’lts; *M. D. Gould,*for resp’ts.

Barnard, P. J.

There is no question made as to the regularity of the meeting at which the vote was taken. It was regularly called by instruction of the annual meeting for the purpose of voting upon the advisability of building a new school house. Chapter 567, Laws of 1875, section 14.

At the meeting so called, a new school house was apprised, and at an adjourned meeting, bonds were authorized to secure the money which was to be payable by equal installments. At each of these meetings there was not present a majority of all the inhabitants of the district. The question presented is whether there must be a majority vote of all the inhabitants, or only a majority vote of those present at *707the meetings. The law required a notice of the' meeting with a notice of the business to be brought before the meeting to be served on each inhabitant of the district. This was done. The section under which the vote was taken, is as follows:

“Whenever a majority of all the inhabitants of any school district entitled to vote, by taking, and to be ascertained by taking, and recording the ayes and noes of such inhabitants attending at any annual or adjourned school meeting, legally called or held, shall determine that the sum proposed and provided for shall be raised by instalments, it shall be the duty of the trustees of such district * * * to issue bonds or other evidences of indebtedness therefor.” * * * “ The majority of the votes of those present ” is sufficient to charge the taxable property for the purchase of a school house. Chapter 555, Laws 1864, article 1, title 7, § 19.

To change a site, “a majority of all the inhabitants of such district present and entitled to vote to be ascertained by taking and recording * * * the ayes and noes,” is sufficient. Section 20.

To sell the old site, “a majority of the votes of those present ” is only needed.

To create a union free school, “ two-thirds vote of those present and entitled to vote ” is called for. Title 9, § 5.

A majority of the voters controls expenditure in union free school districts, including building new school houses and including payments by instalments, as in case of single districts.

The vote by majority of voters present is the general rule, and the wording of the section in question is addressed to that end. The majority of the inhabitants of the district is to be determined by the ayes and noes of those attending. There is no other way of ascertaining the majority of the inhabitants provided for in the law which would have been considered by the legislature. The real majority of all the inhabitants, was not an important factor in the vote at the meeting. The vote by a majority of those present, even if the majority was less than the majority of the whole number of the inhabitants of the district is sufficient.

The judgment should, therefore, be affirmed, with costs.

All concur.