170 Misc. 590 | N.Y. Sup. Ct. | 1939
This is an application for a temporary injunction restraining the police department “ from renewing the taxicab licenses of any owners of taxicabs to whom were transferred taxicabs by owners of more than one taxicab, without assumption by such transferees of all the outstanding tort liabilities of their respective transferors, incurred after the enactment of chapter 27-a of the Code of Ordinances of the City of New York and the Administrative Code of the City of New York.” A restraining order is also sought enjoining the issuance of taxicab licenses to future applicants who fail to assume all the outstanding tort liabilities of their respective vendors, where such vendors own more than one taxicab, and enjoining certain defendant corporations to whom taxicab licenses have been issued, without an assumption on their part of all the tort liabilities of their vendors, from exercising any rights and privileges conferred by such licenses.
The action is a taxpayer’s action purporting to be brought pursuant to section 51 of the General Municipal Law. Plaintiff contends that paragraph 7 of article III of chapter 27-a of the former Code of Ordinances (now § 436-2.0, subd. c, 1f 7, of the Administrative Code of the City of New York) forbids the issuance of a taxicab license to the vendee or transferee of a taxicab unless such vendee or transferee assumes the outstanding tort liabilities of the vendor or transferor incurred after the enactment of such
In the court’s opinion it is, however, unnecessary to determine the question thus presented as to the proper construction and interpretation of the above-referred-to statute since the remedy invoked by the plaintiff, namely, a taxpayer’s action, is not appropriate as a means of determining said question. It is well settled that mere illegality is not enough to warrant the institution of a taxpayer’s action for injunctive relief. In the absence of a showing that the illegal acts, if continued, will result in waste of or injury to public property and funds, such an action will only lie if the'threatened acts are such as are calculated to imperil the public interests or to work public injury or produce some public mischief. Thus, in Western New York Water Co. v. City of Buffalo (242 N. Y. 202) the Court of Appeals declared (at pp. 206, 207): “ Mere illegality is not enough. The very nature and purpose of a taxpayer’s action like the present one presume that there will be more than illegality in order to enable him to intervene. The basic theory of such an action is that the illegal action is in some way injurious to municipal and public interests and that if permitted to continue it will in some manner result in increased burdens upon and dangers and disadvantages to the municipality and to the interests represented by it and so to those who are taxpayers. It was not the intention of the statute that a taxpayer should be allowed to intervene and bring to the decision of the courts every act of a municipal officer which may be claimed to be illegal although concededly it is entirely innocuous. There are other penalties than a taxpayer’s action for those municipal officers who disregard their responsibilities and transgress their limitations.”
In Campbell v. City of New York (244 N. Y. 317) the same court, Cardozo, J., writing, said (p. 330): “ Their cause of action as taxpayers requires something more than proof of an illegal act. The illegality must tend to the detriment of the city either by the dissipation of its funds or by the threat, of other injury so imminent and substantial as to make it proper that the taxpayers be protected by injunction.”
Under the circumstances the court is of the opinion that no case of “ imminent and substantial ” menace to the public if the statute is not enforced as plaintiff claims it should be is made out. The situation might be different if the statute prohibited transfers of cabs without assumption of all tort liabilities of the transferor.
The motion for a temporary injunction is, accordingly, denied.
Affd., 257 App. Div.-.