73 N.Y.S. 741 | N.Y. App. Div. | 1901
I do not think- that the appointment of a commissioner of jurors under the statute in question by the justices of the Appellate Division is a judicial act; and, therefore, the • principle that an injunction will not issue against judicial officers to restrain them from the performance of their duties does not apply to this action.
But assuming the duty imposed to be non-judicial, I am of opinion that the facts contained in the complaint are insufficient to maintain an action for an injunction. So far as the action is an attempt of the plaintiff to try his title to office it is clear that it is improper, as it is well settled that courts of equity will not try that question. Nor is the mere fact that the statute in question is unconstitutional a ground for injunctive relief. The plaintiff must go further and must allege facts which show that by the threatened acts of the defendants the funds of the county will be wasted or that lie will suffer irreparable injury in his property rights. (People v. Canal Board, 55 N. Y. 394.) There is an absence of such allegations.
It is true that the plaintiff alleges that if the defendants proceed under the act to appoint a commissioner of jurors, great waste and injury will result to the property and funds of the county, and that great and irreparable injury will result to the plaintiff and to the people of the county of Kings ; but these are conclusions only; no facts are set forth from which they may be deduced, or which show any well-grounded apprehension of such waste or irreparable injury. “ Injury, material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable results of the action sought to be restrained.” (People v. Canal Board, supra.)
The defendants are not .the custodians of any of the funds of the county, nor have they the power to disburse such funds, and if their appointment of a commissioner would be void, as alleged by the plaintiff, it is not to be presumed that the disbursing officers of the county would commit the illegal act of paying any salaries or expenses incurred by the appointees. It is not alleged that the fiscal officers of the county threaten or intend to pay such salaries and expenses; nor does the complaint contain allegations of a well-grounded apprehension that they would do se, The court will not
If the act as. alleged in the complaint is unconstitutional, the appointment, by the defendants would be no protection to the auditing and disbursing officers for paying the salaries and expenses. Should any attempt of that kind be made by them, the plaintiff has a perfect remedy against them. As ivas said by the court in People v. Canal Board (supra), “that no injury necessarily results from the action of the canal board is very evident; and it is equally apparent that no injury can possibly result to the state from the action of that body alone, without the concurrence of other facts not averred or proved, and without the action of other officials who it cannot be assumed will do any act affecting the funds of the state, except as authorized by a law constitutionally valid.”
The judgment should be affirmed, with costs.
Parker, P. J., Smith, Chase and Houghton, JJ., concurred.
Judgment affirmed, with costs.
