Childs v. Tompkins

| N.Y. App. Div. | Dec 21, 1917

Putnam, J.:

The minority of the village trustees suing as taxpayers do not allege that the acts of the village officials were fraudulent or collusive. This leaves merely the question of the legality of the contract and the contractor’s claims. (Mead v. Turner, 134 A.D. 691" court="N.Y. App. Div." date_filed="1909-11-24" href="https://app.midpage.ai/document/mead-v-turner-5212781?utm_source=webapp" opinion_id="5212781">134 App. Div. 691, 692.) The plaintiffs ask a court of equity not only to intervene, but to do so after the contractor has pursued his remedy in a court of law and has recovered a judgment. The relief asked would not only deprive him of this judgment, but would take away from Kelly and from the village the constitutional right to have the matter determined by a common-law court and a trial by the country. In such forum a defendant’s position is so strong that a contractor cannot recover, unless he shows substantial compliance in every particular with the conditions of his contract. A court of equity has no such prerogative even before the cause of action has been merged in a judgment. (Lodor v. McGovern, 48 N. J. Eq. 275.)

The framers of this statute did not intend to give a referendum to the courts when called on by a minority of a municipal board. The judgment against the village imports verity, and the trustees (though by a narrow majority) have voted against the expense and delay of an appeal. The safe and constitutional road of progress is to impress on the people that only in rare cases would the court step in to set aside the action of the governing body, after the municipality has been held hable in the proper forum. The people have confided to their elected officials a wide range of authority, in the use of which they are answerable to their constituents. In the exercise of these powers,. the local authorities are beyond the direction and control of the courts. If they should make mistakes, they must be temporary, compared with the mischief which judicial supervision in all cases would ultimately produce. (Kittinger v. Buffalo Traction Co., 160 N.Y. 377" court="NY" date_filed="1899-10-10" href="https://app.midpage.ai/document/kittinger-v--buffalo-traction-co-3597750?utm_source=webapp" opinion_id="3597750">160 N. Y. 377, 392.) Our powers cannot be extended to reach and review this action of the constituted village officials, on the grounds here set forth.

I advise to affirm the order sustaining the demurrer, with ten dollars costs and disbursements.

Jenks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Order sustaining demurrer affirmed, with ten dollars costs and disbursements.