An abstention is not a vote. Abstention is a common legislative practice. It may be á means by which time is gained to gather information and to determine the sentiment of constituents. We cannot inquire into motives of a legislator, nor can we make him vote.
Here, under the statute, there was no “ tie vote.” It is within the exclusive province of the lawmakers, if they should ever see fit to do so, to provide that, irrespective of abstentions, the County Executive shall cast a deciding* vote either way where 5 Supervisors have voted for or where 5 Supervisors have voted against a resolution.
We also disagree with the majority in their dismissal of the petition as a matter of discretion. In our opinion, it is a manifest abuse of discretion to reverse a correct determination on the merits and to refuse to decide the single sharp issue of law here presented. In Matter of Ahern v. Board of Supervisors (6 N Y 2d 376, 382) the Board of Supervisors had acted. Public interest and an incomplete record were factors which warranted the exercise of discretion in dismissing the petition. Here, an individual Supervisor has determined that the resolutions have been adopted. It is certainly not in the public interest, by judicial inaction, to render public moneys available for misuse.
Kleixpeld and Bbexxax, JJ., concur with Nolah, P. J.; Beldock and Ughetta, JJ., dissent and vote to affirm, with memorandum.
Order reversed on the law and the facts, without costs, and application denied. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made in accordance with the opinion herein.