L. 1916, ch. 453.

Voluntary adoption; effect.

§§ 113, 114.

minor is desired, such instrument may also state the new name by which the minor shall be known. The instrument must be signed by the foster parents or parent and by each person whose consent is necessary to the adoption, and severally acknowledge by said persons before such judge or surrogate; but where a parent or person or institution having the legal custody of the minor resides in some other country, state or county, his or their written acknowledged consent, or the written acknowledged consent of the officers of such institution, certified as conveyances are required to be certified to entitle them to record in a county in this state, is equivalent to his or their appearance and execution of such instrument. In all cases where the consents of the persons mentioned in subdivision one, two, three, and four of section one hundred and eleven have been waived as provided in subdivision five of such section, or where the person to be adopted is of the age of twenty-one years or upwards, notice of such application shall be served upon such persons as the judge or surrogate may direct. (Amended by L. 1915, ch. 352, and L. 1916, ch. 453, in effect May 29, 1916.)

§ 113. Order. If satisfied that the moral and temporal interests of the person to be adopted will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the person to be adopted shall henceforth be regarded and treated in all respects as the child of the foster parent or parents. If the judge or surrogate is also satisfied that there is no reasonable objection to the change of name proposed, the order must also direct that the name of the minor be changed to such name as shall have been designated in the instrument mentioned in the last section. Such order, and the instrument and consent, if any, mentioned in the last section must be filed and recorded in the office of the county clerk of such county. The fact of illegitimacy shall in no case appear upon the record. (Amended by L. 1915, ch. 352, and L. 1916, ch. 453, in effect May 29, 1916.)

§ 114. Effect of adoption.-Thereafter the parents of the person adopted are relieved from all parental duties toward, and of all responsibility for, and have no rights over such. child, or to his property by descent or succession. Where a parent who has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person who thus becomes the stepfather or the stepmother of such child may adopt such child, such parent or such foster parent, so consenting, shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her rights over said child, or to his property by descent or succession. If the order allowing and confirming the adoption shall direct that the name of the child be changed, the child shall be known by the new name designated in such order. His rights of inheri

$ 115.

Adoption from charitable institutions.

L. 1916, ch. 453.

tance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the person adopted sustain toward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions in this section in relation to adoption by a stepfather or stepmother, and such right of inheritance extends to the heirs and next of kin of the person adopted, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen. (Amended by L. 1915, ch. 352, and L. 1916, ch. 453, in effect May 29, 1916.)

§ 115. Adoption from charitable institutions.-An orphan asylum or charitable institution, incorporated for the care of orphan, friendless or destitute children may place children for adoption and the adoption of every such child, shall, when practicable, be given to persons of the same religious faith as the parents of such child. The adoption shall be effected by the execution of an instrument containing substantially the same provisions as the instrument provided in this article for voluntary adoption, signed and sealed in the corporate name of such corporation by the officer or officers authorized by the directors thereof to sign the corporate name to such instruments, and signed by the foster parent or parents and each person whose consent is necessary to the adoption; and may be signed by the child, if over twelve years of age; all of whom shall appear before the county judge or surrogate of the county where such foster parents reside or, if such foster parents do not reside in this state, in the county where the minor resides, and be examined, except that such officers need not appear; and such judge or surrogate may thereupon make the order of adoption provided by this article. Such instrument and order shall be filed and recorded in the office of the county clerk of the county where the foster parent resides and the adoption shall take effect from the time of such filing and recording. (Amended by L. 1916, ch. 453, in effect May 29, 1916.)

DOWER.

Who bound by judgment, see Judgment.

DRAINAGE LAW.

(L. 1909, ch. 20.)

§ 36. Method of payment in case of annual assessments.

Mandamus.—Where on an application for a writ of mandamus an allegation by the petitioners that they have been duly appointed drainage commissioners is put in issue by a positive denial, the County Court has no authority to issue a peremp

tory writ. People ex rel. Dumphy v. Chaney (1916), 171 App. Div. 303, 156 N. Y. Supp. 1035.

The provisions of this section that “the court in which the proceeding is pending shall have jurisdiction, by mandamus, upon the petition of any party aggrieved to enforce the prompt compliance of any of the provisions of this section on the part of any officials charged therewith," is limited by said section to the enforcement of the rights established thereby, and, hence, does not give the County Court jurisdiction to grant a peremptory writ of mandamus to compel a supervisor to issue and sell bonds under sections 15 and 16. People ex rel. Dumphy v. Chaney (1916), 171 App. Div. 303, 156 N. Y. Supp. 1035.

This section was intended mainly for the incorporation of colleges, seminaries and institutions designed for the promotion of higher education, and was not intended to apply to primary schools or to homes for orphans or other charitable institutions in which some of the elementary branches of education may be taught. Atty. Genl. Opin., 5 State Dep. Rep. 456 (1915).

§ 123. Alteration of school districts by consent.

The consent of a board of education to the alteration of the boundaries of a district may only be given by a written instrument duly signed by a majority of the members of the board, or if signed by the president of the board, it must affirmatively appear that he was authorized to sign such consent by resolution of the board adopted by a majority vote thereof. Com. of Educ. Decision, 5 State Dep. Rep. 619 (1915).

§ 124. Alteration of school districts without consent.

Application. This section and section 125 do not relate to an order of a district superintendent dissolving a school district and annexing its territory to an adjoining district. They apply only when it is proposed to alter the boundaries of a district by transferring portions thereof. Com. of Educ. Decision, 6 State Dep. Rep. 553 (1915).

§ 128. Dissolution of school districts by consent.

There must be a strict compliance with the requirements of the statute where it is sought to dissolve a district with the consent of the trustees. Com. of Educ. Decision, 5 State Dep. Rep. 636 (1915).

§ 129. Dissolution, reformation, and consolidation of school districts. Broad powers are conferred upon the district superintendent by this section. He may dissolve any of the school districts under his supervision and from the territory of such dissolved districts erect new districts and make such disposition of the territory as in his judgment is most desirable. Com. of Educ. Decision, 4 State Dep. Rep. 614 (1915).

There is a presumption in favor of the reasonableness and sufficiency of an order altering the boundaries of a school distrct, which, after due opportunity for a hearing, has been duly ratified by a board consisting of the district superintendent and the supervisor and town clerk of the town in which the districts are situated. Com. of Educ. Decision, 6 State Dep. Rep. 557 (1915).

The rule that the boundaries of a district should not be altered for the sole purpose of equalizing tax rates, does not apply where it is sought to transfer from one district to another, territory which should naturally be included within the latter district. Com. of Educ. Decision, 6 State Dep. Rep. 557 (1915).

Notice to trustees of the dissolved districts, is not required by statute. Com. of Educ. Decision, 5 State Dep. Rep. 585 (1915).

Failure to obtain the consent of the trustee of the dissolved district does not render an order by the district superintendent dissolving a district, illegal. Com. of Educ. Decision, 6 State Dep. Rep. 553 (1915).

The burden rests upon the appellant to show that an order of the district superintendent dissolving a district, fails to advance the school welfare of the children of the dissolved districts. Com. of Educ. Decision, 5 State Dep. Rep. 585, 587 (1915).

§ 132. Proceedings at meeting for consolidation.

Construction. This section must be construed as restricting the power of a meeting to adopt a resolution of consolidation if the required number of qualified electors from each district are not present. But it does not restrict or limit the power of the meeting to organize or to take any other necessary action in the absence of qualified electors from either of the districts. Com. of Educ. Decision, 4 State Dep. Rep. 644 (1915).

Adjournment of a meeting may be taken to a subsequent date to obtain the presence of a sufficient number of qualified electors. Com. of Educ. Decision, 4 State Dep. Rep. 644 (1915).

Appeal; presumption in favor of consolidation.-When a substantial majority of the qualified electors of each of the districts sought to be consolidated, vote in favor thereof, a presumption exists that the educational welfare of the community will be thereby promoted and such consolidation will not be disturbed on appeal in the absence of convincing proof to the contrary. Com. of Educ. Decision, 4 State Dep. Rep. 644 (1915).

§ 142. Posting, publication and service of notice.

Failure to post notices as required by this section will not invalidate a resolution for the establishment of a Union Free School district, where the resolution was favored by a substantial majority of the qualified electors of the district, and where there is nothing indicating that the failure to post such notice was fraudulent or with any purpose of taking unfair advantage of those opposed to the resolution. Com. of Educ. Decision, 4 State Dep. Rep. 642 (1915).

§ 143. Notice in case of adjoining districts.

Application. The provisions of this section as to notice of meeting relate to the establishment of a Union Free School District, and have no bearing upon proceedings relating to the dissolution and consolidation of school districts. Com. of Educ. Decision, 4 State Dep. Rep. 614 (1915).

193. Notice of annual district meeting.

Publication of notice of annual meeting in Union Free School district. Com. of Educ. Decision, 5 State Dep. Rep. 643 (1915).

§ 200. Effect of want of due notice of district meeting. Application.—This section applies to all meetings, whether special or annual, held in all school districts, and to notices given either by posting, personal service or publication. Com. of Educ. Decision, 5 State Dep. Rep. 643 (1915).

The intent of this section is to prevent the nullification of proceedings at district meetings where failure of notice was not intentional, and the qualified electors of the district were not unfairly deprived of the opportunity of participating therein. Com. of Educ. Decision, 5 State Dep. Rep. 643 (1915).

Failure to post notices, as required by section 142, will not invalidate a resolution for the establishment of a Union Free School district, where the resolution was favored by a substantial majority of the qualified electors of the district, and where there is nothing indicating that the failure to post such notice was fraudulent or with any purpose of taking unfair advantage of those opposed to the resolution. Com. of Educ. Decision, 4 State Dep. Rep. 642 (1915).