Opinion
Argued January 25, 1952
Decided March 14, 1952
Appeal from the Supreme Court, Appellate Division, Second Department, COLDEN, J.
Charles Kingsley and Joseph P. Kissling for appellants.
James L. Dowsey, Jr., Town Attorney ( Bertram B. Daiker of counsel), for respondents.
We hold that any signer of a petition described in section 191 of the Town Law has a right, up to the time such petition is acted on by the town board by the publication or posting of a notice of hearing (Town Law, § 194), to withdraw and revoke his signature by filing with the town clerk a duly acknowledged statement of such withdrawal and revocation (see People ex rel. Irwin v. Sawyer, 52 N.Y. 296; People ex rel. Yawger v. Allen, 52 N.Y. 538). Nothing to the contrary was held in People ex rel. McGrath v. Weiss ( 216 App. Div. 505, affd. 245 N.Y. 518) since in that instance the attempted withdrawal of signatures was by a petition which was not presented to the town board until the time of its hearing, and thus a considerable time after the town board had taken jurisdiction of the original petition by publishing and posting notice of such hearing (see Matter of Floyd-Jones v. Town Bd. of Oyster Bay, 249 N.Y. 398, 405).
The orders should be reversed, with costs in all courts, and the determination of the town board annulled.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
Orders reversed, etc.