60 A.D. 47 | N.Y. App. Div. | 1901
In this action a taxpayer, under the authority of chapter 301 of the Laws of 1892, seeks to restrain the payment of certain ■ judgments against the city of Hew York, entered upon offers of the corporation counsel to allow judgments to be entered in favor of the individual defendants other than the comptroller, which, as alleged in the complaint, were executed and verified by the corpo
The statute under which the action is brought (Laws of 1892, chap. 301) provides : “ All officers, agents, commissioners and other 'persons acting, or who have acted for and on.behalf of any * * * municipal corporation in this State, and each and every one of them, may be prosecuted and an action or potions 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 a,nd make good any property, funds or estate of such *• * * municipal corporation by any person or corporation whose assessment * * * shall amount to one thousand dollars .* * In case the waste or injury complained of consists in any board, officer or agent in any * * * municipal corporation, by collusion or otherwise * * * paying or conniving at the * * * payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses, or any item or part thereof against or by such * * * municipal corporation, or by permitting a judgment or judgments to be recovered against such * * * municipal corporation * * * either by default or without the interposition and proper presentation of any existing legal or equitable defenses, * * * the court may, in its discretion, prohibit the payment or collection of any such claims, demands, ■ expenses or judgments, in whole or in part * * * ; and in case
It follows that the judgment appealed from must he reversed and the demurrer overruled, with costs to the plaintiff, with leave to the defendant to withdraw the demurrer and answer upon payment of costs in this court and in the court below.
Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.
Judgment reversed and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer upon payment of costs in this court and in the court below.