9 N.Y.S. 388 | N.Y. Sup. Ct. | 1890
This action has been brought by the plaintiff, who is a taxpayer of the city of Hew York, upon property assessed for an amount exceeding the sum of $1,000. The object of it is to prohibit and enjoin the making and execution of a contract proposed to be made between the Standard Electric Subway Company and the board of electrical control in and for the city of Hew York, created and authorized to act under chapter 716 of the Laws of 1887. The plaintiff placed his right to maintain the action upon the authority created by chapter 673 of the Laws of 1887. This act authorizes any person, or number of persons whose assessments for the payment of taxes upon their property shall exceed $1,000, upon giving the security therein mentioned, to prosecute and maintain an action against all officers, agents, commissioners, and other persons, acting for or on behalf of any county, town, village, or municipal corporation in this state, and each and every of them, to prevent any illegal official act on their part, or to prevent any waste or injury to, or to restore and make good any of, the property, funds, or estate of such county, town, village, or municipal corporation. The act as it has been in this manner adopted is-very broad and comprehensive in its provisions. Its object seems to have been to vest the tax-payer with the authority of restraining not only municipal corporations in the state, but their officers from violating the obligations- and duties of their trusts, by any illegal official act, or any act which would)
The objection has been taken that other parties should have been brought into the action to enable the plaintiff to maintain it under the authority of this statute. But if this objection should be held to be well founded it would be no answer to the right to maintain the action, for by section 452 of the Code of Civil Procedure ample provision has been made to supply any defect which may be found in the action in this respect. It has been there declared that where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in. But, as no vested rights have been acquired, there would seem to be no ground for this objection.
The case, accordingly, is not one on this account for the dismissal of the complaint or the denial of such relief as will prevent the consummation of the illegal acts which the statute has intended to avoid. The members of the board of electrical control have been made parties to the action, whose object is to prevent them from doing that which may be found to be intended to be done without lawful authority, and if a case has been presented from which it can be seen that such an illegal and wasteful act is contemplated or intended by the members of this board they may be prevented from consummating it by an injunction; that board having no general authority to act, but deriving all their authority from the provisions of the statute. The object of the legislation concerning the action of this board has been to provide the means for placing the electric and telegraphic wires used in the city in subways to be constructed and maintained under the surface of the streets of the city. This legislation, so far as it is required to be considered in this action, is contained in chapter 499 of the Laws of 1885, chapter 503 of the Laws of 1886, and chapter 716 of the Laws of 1887. The latter act has defined and declared more particularly the manner in which this object shall be attained through the action and authority of the members of the board of electrical control. In the year 1886 they entered into a contract with the Consolidated Telegraph & Electric Subway Company, for the construction and maintenance of the subways mentioned and referred to in it. A further agreement was also entered into, modifying and changing this contract in respects not necessary to be considered in the disposition of this appeal, which contracts were validated except as to a few or their features by the act of 1887. This company proceeded in the construction of the subways mentioned in this contract; but they have not been completed, and the company has announced that in their opinion the subways cannot be completed in less than two years. It has not refused to proceed with the work, but in consequence of an arrangement or understanding entered into with the Standard Electric Subway Company it proposes to surrender and assign all its rights and interests in certain portions of these contracts and the work it has already performed to the latter company, and to carry this arrangement or understanding into effect a contract has been proposed by the Standard Electric Subway Company, and sanctioned by the counsel for the city of Hew York, and whether this contract, in this manner excepted, is one which the acts already mentioned will allow to be executed and carried into effect is the more important part of the controversy now before the court. Previous to the time when the form of the contract was determined, and on or about the 19th of February, 1890, a resolution was adopted by the board of electric control containing a statement of the streets and avenues, in which it was intended that these subways should be constructed, and by this resolution it was stated that they should be built within
By article 2 of the proposed contract it has been declared that the subways aforesaid, as the Standard Company shall be directed by the party of the first part to build, shall be built in accordance with the plans and specifications theretofore furnished or to be furnished by the board; but no language has been employed in this part of the contract, or, indeed, in any other, by which this company agreed that it would build such subways as the board should direct it to build. Power to make modifications and changes which might be reasonably necessary has been reserved to the board, but that power extends