76 A.D. 405 | N.Y. App. Div. | 1902
The plaintiff brings, this action as a taxpayer under the provisions of section 1925 of the Code of Civil Procedure against Charles H. Knox, William N. Dykman and Alexander T; Mason, as civil service commissioners of the city of New York; Bird S. Coler, as comptroller of the city of New York; Michael C. Murphy, as police commissioner of the city of New York, and Edward A, Gaus, James Gannon and John J. Lantry, as police captains, and demands judgment that the "promotion and appointment of the defendants Edward A. Gaus, James Gannon and John J. Lantry, as captains in the police department of the city of New York, and each of them, be set aside and declared null and void,” and that the civil service commissioners named, as well as the police commissioner, be restrained from certifying the payrolls 'for the threé defendants above mentioned, and that the comptroller be enjoined and restrained from paying these three defendants their salaries as captains of police. Gaus, Gannon and Lantry, who are the real defendants, demur to the complaint upon the grounds that the plain-tiff has not legal capacity to sue, in that no authority is by law conferred upon a taxpayer to bring and maintain an action of the character stated in the complaint; that the complaint does not state facts sufficient to constitute a cause of action, and that causes of action have been improperly united. The learned court at Special Term has overruled these demurrers, and from the interlocutory judgment entered appeal comes to this court.
We are of opinion that the learned court erred in this disposition of the demurrers. There is no allegation in the complaint that the appointment of these three defendants, who were promoted from police sergeants to captains, has resulted or will result in “ waste of, or injury to, the estate, funds or other property of ” the city of New York, and without such an allegation the complaint does not state facts which would entitle a taxpayer to interfere. (Johnston v. Garside, 65 Hun, 208, 210.) “ Full force and effect can be given to the statute by confining it to a case where the acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged;” say the court ini ..Talcott v. City of Buffalo (125 N. Y. 280, 288). "Any other construction,” continue the court, “ would subject the discretionary
The interlocutory judgment appealed from should be reversed, with costs, and the demurrers to the complaints should be allowed,
All concurred.
Interlocutory judgment reversed, with costs, and demurrers to the complaint sustained, with costs.