156 N.Y.S. 538 | N.Y. App. Div. | 1915
This is a taxpayer’s action brought pursuant to section 51 of the General Municipal Law, against Haight and Spencer, to recover money paid by Haight, as supervisor of the town of Eye, to Spencer. The defendants appeal from, the judgment of the Special Term against them.
In January 1902, the town board of Eye passed a resolution that Spencer be appointed an assistant in the town rooms to attend to the public in general and to give the supervisor, receiver of taxes and town clerk such assistance as they may need, the appointment to be at the pleasure of the town board and the expense to become a town charge. At that time there was a large amount of unpaid taxes due and owing to the town and the records thereof were in confusion. Spencer went to work in the said month and did the work required of him until March, 1912. His weekly pay, at first $10, was increased in 1910 to $18. Haight, elected supervisor in November, 1909,
The court found that the payments were made under a claim of right and under neither misapprehension nor mistake of fact; that Spencer did the work required of him under the resolution and required of him by the town board; that such work was reasonably worth the sums paid therefor; that there was no collusion upon the part of Spencer with Haight or with any other person; that Haight made the payments in good faith and that Spencer received them in good faith. It also found that all of the moneys so paid were paid before this action was begun and that Haight did not receive any of the moneys sought to be recovered in this action.
The court said in its opinion that it was perfectly satisfied by the proofs that there was no intentional wrongdoing by either of the defendants; that the employment of Spencer by the town board and the payments made to him by Haight were in good faith, and, no doubt, with the belief on the part of the town board and of Haight that the employment of Spencer was legal. But the court concluded ,that the resolution of employment was illegal and without authority and void; that the said payments were illegal and not valid claims against the town; that the approval of the auditors was illegal, void and without authority of law, whereby there was diversion and waste. (See 87 Misc. Rep. 425.)
We think that the judgment must be reversed. This and similar statutes (Brill v. Miller, 140 App. Div. 605) clothe the individual taxpayer with peculiar rights. (Hearst v. McClellan, 102 App. Div. 336.) The remedy afforded is against acts done without power, or tainted with corruption, fraud or bad faith amounting to fraud. (Talcott v. City of Buffalo, 125 N. Y. 280; Ziegler v. Chapin, 126 id. 342; Hearst v. McClel
Moreover, in Wallace v. Jones (195 N. Y. 511) the court affirmed S. C. (122 App. Div. 497) on the ground that “ the money having been paid before the action was commenced, no action for its recovery against the defendants jointly could he maintained unless on proof of collusion on the part of those defendants who did not receive the money.” In view of the findings heretofore stated, this decision is directly in point.
People v. Sutherland (207 N. Y. 22), cited as authority by the learned Special Term, was brought under a. different statute (Code Civ. Proc. § 1969) and by the Attomey-General. These circumstances constitute its discrimination from the case at bar.
The judgment is reversed and a new trial is granted,» costs to abide the final award of costs.
Thomas, Carr, Mills and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.