erty, within such territory, which was assessed upon the last assessment-roll of the town, may vote at such election.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 12, as amended by L. 1906, Ch. 404; originally revised from L. 1870, Ch. 291, tit. 1, sec. 9, as amended by L. 1896, Ch. 923.

Editor's note. The general Village Law provided that electors liable to be assessed for the ordinary and extraordinary expenditures of the village should be qualified. Under section 12 it is not necessary that the property should be assessed to the person claiming to be qualified. If at the time of offering his vote he or his wife is the owner of property which was assessed to any one on the preceding roll, it is sufficient to qualify him in that respect.

Husband and wife owning property by entirety, assessed upon the last assessment roll, may vote at an election for the incorporation of a village. Rept. of Atty.-Gen., Mch. 3, 1911.

Requirement that voter be taxpayer is not unconstitutional. Spitzer v. Village of Fulton, 172 N. Y. 289 (1902), aff'g 61 App. Div. 612.

§ 13. Ballot boxes where territory is in more than one town. If the proposed village is situated in more than one town, a separate ballot box shall be provided for each town, and the ballot of each person voting at such election shall be deposited in the ballot box assigned to the town in which he resides.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 13.

Editor's note. Such manner of voting unnecessary in order to determine whether a majority of the votes of each town are in favor of incorporation as required by section twenty-one.

14. Canvass of election.

Immediately after the closing of the polls of the election the board of inspectors shall canvass the ballots cast thereat, and make and sign a certificate of the holding of the election and of the canvass, showing, if the territory is wholly within one town, the whole number of ballots, the number for incorporation, and the number against incorporation; or if it includes parts of two or more towns, showing such facts separately as to each town. Within three days after the election, the inspectors shall file such certificate in the office of the town clerk with whom the proposition and other papers are filed. If the certificate shows that a majority of the votes cast at such election in each town included in the territory is against the proposition to incorporate, then no other election shall be held on such proposition within such town or towns within two years from the date of such election at which such proposition was voted down.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 14; originally revised from L. 1870, Ch. 291, tit. 1, sec. 10, as amended L. 1892, Ch. 194, tit. 8, sec. 2. Amended by L. 1911, Ch. 114.

Cross references. Certificate of canvass, see post, Form 7.

Statute further provides "If two or more ballots shall be found in the box so folded together as to present the appearance of a single ballot, they shall be destroyed, if the whole number of ballots in such ballot box exceeds the whole number of ballots shown by the poll books and ballot clerk's statement to have been deposited therein and not otherwise." (Election Law, sec. 110, subd. 1 as amended by Laws 1898, Ch. 335.) Matter of Village of Webster, 102 App. Div. 202 (1905).

Where ballots exceed number shown by poll book inspector should draw out as many ballots as shall be equal to such excess and without unfolding, destroy the same. Matter of Village of Webster, 102 App. Div. 202 (1905); see Subd. 1, sec. 110, Election Laws 1896, Ch. 909, as amended by Laws 1898, Ch. 335; see Jewett's Manual, sec. 367, page 194.

15. Appeal from election.

If the certificate shows that a majority of the votes cast at such election in each town included in the territory is in favor of incorporation, a person qualified to vote at such election may appeal therefrom to the county court of the county in which the proposition and other papers are filed.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 15.

Statutory method exclusive and validity of proceedings cannot be attacked collaterally. Gardner v. Christian, 70 Hun, 547 (1893), 24 N. Y. Supp. 339; Matter of Elba, 30 Hun, 550 (1883); Willis v. Staples, 30 Hun, 644 (1883). Certiorari not proper remedy to review proceedings for incorporation. People v. Village of Nelliston, 18 Hun, 175 (1875).

This section does not authorize an appeal to the County Court from a certificate showing the result of an election for the incorporation of a village under Article 12. Matter of Village of Sag Harbor, 32 Misc. 624 (1900).

§ 16. Notice of appeal and return.

An appeal may be taken by serving a notice of appeal on the town clerk with whom the certificate of incorporation is filed, and by posting the same in five conspicuous places in such territory. The notice shall be signed by the appellant and must state briefly the grounds upon which the appeal is taken. It must be served and posted within ten days after the filing of the certificate of election.

The town clerk on whom the notice of appeal is served, must, within five days thereafter, transmit to the county judge a certified copy of such notice of appeal and of the certificate of election.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 16.

Cross references Manner of serving notice, see post, section 330; notice of appeal from election, see post, Form 8; notice of argument, see post, Form 4.

Statutory requirement that appeal shall be taken within ten days after the filing of certificate of election is not unreasonable. Gardner v. Christian, 70 Hun, 547 (1893).

§ 17. Hearing and decision of appeal.

Upon such appeal the county court can only consider questions relating to the validity or regularity of the election. An appeal may be brought on for hearing by the service of a notice of argument by the appellant upon the town clerk, and by posting the same in five conspicuous places in such territory. The notice shall state the time of the hearing, which must be not less than ten days after the service and posting thereof. On such hearing, any number of qualified electors of the territory, not exceeding five, may appear in support of the validity or regularity of such election. The county court may take testimony, either orally or by affidavit, as it may determine. Such appeal must be heard and decided and the decision filed within thirty days after service of the notice of appeal; and the county court has no jurisdiction to consider the same after the expiration of that period. The county court may sustain or set aside the election. The decision must be filed by the county judge in the office of the town clerk on whom the notice of appeal was served. He shall also file a copy of the decision with the county clerk, together with the papers transmitted to him by the town clerk.

No costs shall be allowed to any party on such appeal.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 17.

Cross references. Notice of argument of appeal, see post, Form 4; decision of court on appeal, see post, Form 5.

§ 18. Appeal to appellate division.

If the county court sustains the election, an appeal may be taken from such decision to the appellate division of the supreme court. Such appeal brings up for review all proceedings in the county court, and a case on appeal must be made and settled by the county judge as on an appeal from a judgment of the county court. Such appeal shall be taken within ten days after the filing of the decision, by the service of a notice of appeal upon the county clerk with whom a copy of the decision is filed, and upon each person who appeared in support of the election in the county court.

The proceedings for bringing on the appeal and the hearing and decision thereof by the appellate division are regulated by the code of civil procedure.

The appellate division may affirm the decision of the county court or reverse the same and set aside the election.

Within ten days after the determination of the appeal by the appellate division, a certified copy of its decision or order must be filed in the office of the town clerk with whom the proposition is filed.

No costs shall be allowed to any party on appeal to the appellate division.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 18.

19. Stay on appeal.

An appeal to the county court or to the appellate division stays all proceedings for the election of officers or otherwise in such proposed village until the determination of such appeal.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 19.

§ 20. New election.

If the election be set aside on appeal, a new election shall be held. The right to such an election shall be complete upon the filing of the decision on appeal with the town clerk. He shall thereupon give notice of another election. All the provisions herein contained regulating the first election apply to proceedings for a new election, including the service and posting of notices, the conduct of the election, the canvass and certification of the result, and appeals therefrom. A new election shall be held in like manner if any election is set aside on appeal.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 20.

Second election can be held upon order of county judge and notice signed by inspectors of the previous election, without notice signed by twenty electors, as required for the first election. People v. Snedeker, 160 N. Y. 350 (1899), aff'g 30 App. Div. 1.

21. When village deemed incorporated.

If the territory is wholly within one town, and a majority of the votes cast is in favor of incorporation, or if it includes parts of two or more towns and a majority of the votes cast in each

town is in favor of incorporation, then such territory shall be come and be an incorporated village under this chapter from and after the date of such election, and upon receipt by the supervisor of the town or towns in which the territory constituting the village is situated, of the certificate of the secretary of state under the seal of his office certifying that he has received and has placed on file in his office an outline map and description of the corporate limits of such village, certified as being true and correct by the supervisor of the town or towns in which the territory constituting such village is situated, together with the date of filing the same in his office. The certificate of the secretary of state herein required shall become a record of the village clerk's office, and the date of the filing of the map and description by the secretary of state shall complete the incorporation and be deemed the date of incorporation of such village, unless the election is set aside on appeal as herein provided.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 21, as amended by L. 1907, Ch. 607. In effect August 7, 1907.

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Cross references. The term Village' means incorporated village. See post, General Construction Law, sec. 54.

Admission in pleading will establish incorporation of village. Fox v. Village of Fort Edward, 48 Hun, 365 (1888).

Recitals in legislative act of incorporation are evidence of incorporation against the village in whose favor the act was passed. Fox v. Village of Fort Edward, 48 Hun, 363 (1888).

§ 22. Report of incorporation.

After ten and within fifteen days from the filing of the certificate of election, if no appeal has been taken, or within fifteen days after the filing of a final decision sustaining the election, the town clerk with whom such certificate is filed shall deliver a certified copy thereof to the secretary of state, tax commission and to the county clerk of each county in which any part of such village is situated, together with a statement of the population of such village as it appears by the proposition for incorporation.

Derivation. Former Village Laws (L. 1897, Ch. 414), sec. 22.
Amended by L. 1917, Ch. 25, in effect March 1, 1917.

Cross references. Certificate of canvass, see post, Form 7.

Statement of population required to be filed as provided in the above section is evidence of the population of the village for the purpose of determining the amount to be paid for a liquor tax certificate. People ex rel. Briggs v. Lyman, 48 App. Div. 484 (1900); aff'd 163 N. Y. 602.