26 N.Y.S. 136 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment procured at special term which adjudged the consent of the local authorities, granting to the defendant corporation permission to build its railroad, to be illegal, and restraining that corporation from constructing any part of its road. It is the object of the action to procure a judgment which shall declare the grant to the corporation set out in the complaint to be illegal, and restraining that company from doing any act or taking any step towards the construction of a railroad over the streets and avenues described. The complaint contains the following allegations: The plaintiff is a citizen and resident and freeholder of the city of Brooklyn, and owns real estate therein which is assessed for more than $1,000. That he is liable to be assessed in the city of Brooklyn, and has been so assessed, and has paid taxes there, within one year previous to the commencement of this action. It is also alleged that the plaintiff’s dwelling house is situated on the southerly side of Union street, in the city of Brooklyn; that the city of Brooklyn is a municipal corporation, and the Union Railway Company is a domestic railroad corporation; that the individuals named as defendants are members of the common council of the city of Brooklyn, and as such were trustees of the property, funds, effects, and estate of the city. In or about the month of June, 1892, the defendant railway company and the Union Street Railway Company, another domestic railway corporation, made application to the common council for leave to construct, operate, and maintain a street-surface railway, to be run by electric power, along certain • streets in the city of Brooklyn. The common council, first through a committee, and afterwards as a whole body, heard the application at the same time. The Union Street Railway Company then and there offered the said committee and the common council to pay the sum of $30,000 for a grant from the city authorities for the right to construct and operate such railroad through such streets, and was ready and able to pay the same. The defendant railway corporation made no offer whatever for such grant. Each of the railway companies proposed to build and operate, and would have built and operated, the same kind of a railway, and there was no difference between them, and no preference could, for any reason, be given to the one over the other. The common council and its committee wrongfully and willfully, and in violation of their official duties to the city and the taxpayers, and in waste of the property, funds, effects, and estate of the city, solely in order to favor the said defendant railway company, and the persons who are incorporators and stockholders thereof, and colluding with such persons, with intent to cheat and defraud said city out of the value of said leave to construct, operate, and maintain such railroad, refused to entertain the offer of
The cause was tried before a judge, who found that the plaintiff is a citizen of the United States, a freeholder and elector therein, and his assessment on real estate therein owned by him, amounts to more than $1,000, and he is liable to be taxed upon such assessment in such city, and has been so assessed, and has so paid taxes in said city on such assessment, for one year previous to the commencement of this action. That the city of Brooklyn is a municipal corporation. The defendant the Union Railroad Company is a domestic corporation, and the Union Street Railway Company also. The individual defendants are members of the common council of the city of Brooklyn. Shortly after the incorporation of the Union Railroad Company of the city of Brooklyn, it made written application to the common council for their consent to the construction and' operation of its railroad upon the streets and avenues described in its charter. That no decisive action was at that time taken-in regard to such written application. The two railroad corporations, the Union Railway Company and the Union Street Railway Company, made application to the common council for leave to construct, operate, and maintain a street-surface railroad to be operated by electric power along certain streets in the said city; the route described in both applications being the same. The attorney for the Union Street Railway Company offered to the committee to pay to the' said city $30,000 for the right ap
This action was tried and decided upon the theory that the plaintiff was a taxpayer, and in reference to the rights of taxpayers to entertain similar actions under chapter 301 of the Laws of 1892, and we shall so consider it. The portion of section 1 which is material to this action reads as follows:
*140 “All officers, agents, commissioners and other persons acting, or who have acted, for and on -behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of any.such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum of whose assessment shall amount to one thousand dollars, and who shall be liable, to pay taxes on such assessment or assessments in the county, town, village or municipal corporation, to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment or assessments of the above-named amount, within one year previous to the commencement of any such action or actions.”
The object of the action so authorized must be to prevent an illegal official act, or to prevent waste or injury to any property, funds, or estate of such county, town, village, or municipal corporation. Civil actions by private individuals to prevent wasté and injury of public property, protect taxpayers, and restrain official malfeasance were unknown to the common law, and were first authorized in this state in 1872, in consequence of the stupendous frauds perpetrated in the city of New York about that time. The first act authorized an action against officers and agents of counties, towns, and municipal corporations of the state to prevent waste or injury to property or funds thereof. Laws 1872, c. 161. Thereafter, this act was incorporated into section 1925 of the Code of Civil Procedure. Then came chapter 526 of the Laws of 1879, which gave the action for the same purpose, in substantially the same language. That was followed by chapter 435 of the Laws of 1880, in the same terms, so far as the relief was concerned. The first act of 1872 was entitled “An act for the protection of tax payers against the frauds, embezzlements and wrongful acts of public officers and agents,” and down to 1880 the acts were amendatory of that statute. "Then came the. act of 1881, which was an independent statute, entitled “An act for the protection of tax payers,” and in it, for the first time, were these words, “To prevent any illegal official act on the part of any such officers,” followed by the words," or to prevent waste,” etc. Laws 1881, c. 531. That law repealed chapter 435 of the Laws of 1880. To that law there was an amendment in 1887, but substantially the same words were employed in specifying the relief authorized as in the law of.1881. Laws 1887, c. 673. That statute was followed by chapter 301 of the Laws of 1892, from which we have quoted. The history of legislation on this subject shows how progressive have been the enactments. Instead of an abridgment of its scope or a relaxation of its rigor, the legislature has extended its sweep and augmented its severity, and that is a sufficient admonition against any circumscription of operation of this statute. All the statutes have been in the. interest of the public, and aimed at frauds and wrongful acts of public officers and agents.
It is the insistance of the appellants that bad faith is insufficient to justify this action, and that nothing short of corruption and fraud will suffice, and of that there is no proof. We cannot concur with