I agree with the majority’s holding that the town has not materially departed from the plan approved by the referendum, but there remains an independent basis for dismissing this condemnation proceeding. Subdivision 3 of section 360 of the General Municipal Law requires that the resolution submitted to the townspeople set forth "both the maximum and the estimated costs” of the proposed enterprise. The resolution which won approval in the referendum merely authorized "a maximum estimated cost of $4,500,-000”.
Regardless of the good faith and expertise of the town legislators in estimating the cost of taking over the electric utility system, their estimate would inevitably be subject to some error. Appraising the value of simple, unimproved realty is a difficult problem, and a fortiori any estimate of the value of the complex of Niagara Mohawk property to be condemned herein and the cost of the projected improvements to be carried out by the town could be no more than an approximation. The obvious purposes of the statute in requiring that "both the maximum and the estimated costs” of the project be included in the resolution are to make the voters aware of the magnitude of the possible error in the estimate of the costs they may incur and to allow the town some leeway in prosecuting its condemnation proceeding.
The statutory purpose noted first above was not fulfilled by the resolution herein. The consulting engineers hired by the *148town to report on the feasibility of taking over Niagara Mohawk’s operations estimated the cost at $4,500,000. (Feasibility Report, appellant’s appendix, p A.777.) This figure was not presented by the consulting engineers to the town as the maximum cost. As a result of the failure of the resolution to give some indication of the uncertainty of the projected cost, the voters were not informed of an important factor in making an intelligent decision.
As for the other statutory purpose, it is no answer to say that the town can always return to the voters for a further authorization in the event the actual cost is determined in the condemnation proceeding to be over $4,500,000. Substantial moneys for legal and expert witness fees would have to be expended in the course of such a proceeding. If the cost exceeds $4,500,000, the town, having already expended substantial funds in the litigation, would have to return to its voters for further authority. The voters would have to choose between paying more for the utility or losing the funds already expended. The chance of this undesirable dilemma arising would be substantially reduced if the resolution stated the town’s best estimate of the cost as well as the maximum cost which it could reasonably foresee.
The judgment dismissing the proceeding should be affirmed.
Greenblott, J. P., Main and Larkin, JJ., concur with Herlihy, J.; Mahoney, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, with costs to plaintiff, and matter remitted to County Court with directions to grant the petition for condemnation and enter an appropriate judgment thereon together with the right of temporary possession in accordance with the Condemnation Law. The appeal from the order of May 17, 1977 is dismissed as academic.