Opinion
Argued May 29, 1940
Decided July 24, 1940
Appeal from the Supreme Court, Appellate Division, Second Department, STEINBRINK, J.
M.E. Harby and Frederick W. Bickmann, Jr., for appellants.
Ralph Stout, Harry S. Austin and Edgar F. Hazleton for respondent.
This action was one for a judgment declaring two resolutions of the Board of Supervisors of Suffolk county and three ensuing items of a tax warrant to be unlawful and void for want of statutory authorization thereof. Special Term granted such a judgment. Pending an appeal by the defendant to the Appellate Division, the Legislature, by chapter 572 of the Laws of 1939, declared that the contested resolution of October 26, 1936, was as of the times in issue "legalized and validated, notwithstanding any defect, irregularity or omission therein * * * or in the lack of statutory authority therefor." The Appellate Division was bound to give effect to this curative statute ( People ex rel. Clark v. Gilchrist, 243 N.Y. 173, 180) which interdicted the declaratory judgment granted by Special Term. Since no other relief was sought by plaintiffs, the complaint should have been dismissed by the Appellate Division.
Whether the curative statute was, as plaintiffs claim, an attempt retroactively to confirm taxation is a question that need not be considered. (See Lennon v. Mayor, 55 N.Y. 361.)
The judgment of the Appellate Division should be modified so as to direct only that the complaint be dismissed on the law and, as so modified, affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, SEARS, LEWIS and CONWAY, JJ., concur.
Judgment accordingly.