The opinion
In an action for a declaratory judgment, defendant Town of Carmel appeals from a judgment of the Supreme Court, Putnam County, dated July 17, 1969, which granted plaintiff’s motion for summary judgment, adjudged that the amendment to section 3.12 of article III of the Subdivision Regulations of the Town of Carmel is illegal, and directed defendant to refund to plaintiff the $9,000 deposited by plaintiff with appellant, upon plaintiff furnishing a proper bond in the same amount. Judgment affirmed, with $10 costs and disbursements. Allegedly pursuant to section 277 of the Town Law, the Town of Carmel adopted a resolution purporting to amend the town’s subdivision regulations to provide that all bonds submitted to the clerk of the town shall be on a basis of cash of not less than a specified portion of the total amount required, with the remainder permitted to be by surety company bond. Plaintiff wished to submit surety company bonds totaling $90,000, the total amount required in connection with its proposed subdivision of land. Under protest, he complied with a demand that $9,000 be in cash and submitted a surety company bond in the sum of $81,000 and a “ cash bond ” in the sum of $9,000. The issue is whether the town had the legal right to require a cash deposit as part of a performance bond as a condition to approving the subdivision. The town’s authority for enacting subdivision regulations is in section 277 of the Town Law, a delegation of powers by the Legislature. In our opinion, the town lacked the authority to adopt the regulation in question (cf. Reggs Homes v. Dickerson, 16 Misc 2d 732 , affd. 8 A D 2d 640; Matter of Bon-Air Estates v. Building Inspector of Town of Ramapo, 31 A D 2d 502; Seaman v. Fedourich, 16 N Y 2d 94, 101). Christ, P. J., Hopkins, Brennan and Benjamin, JJ., concur. (Beldock, P. J., deceased.)