142 Misc. 203 | N.Y. Sup. Ct. | 1929
Plaintiff sues as a taxpayer, and asks'injunctive relief against the city of New York, the mayor, the comptroller, and others, constituting the board of estimate and apportionment, individually and as members of that board, and the Equitable Coach Company. Five separate causes of action (are set out in the complaint. Defendants' motions test the validity of each cause of action. They may be respectively outlined as, first, that the franchise to operate bus lines granted by the board”of estimate and apportionment to the Equitable Coach Company on July 28, 1927, as well as the contract thereafter executed between the city of New York and the coach company on August 10, 1927, are invalid because the franchise did not conform to the) petition which had been filed, and the streets covered by the franchise differed from those which were set forth in the petition upon which the board initially acted. The second cause of action rests upon the claim that the resolution awarding the franchise failed to receive the votes of members of the board of estimate and apportionment to the extent required by statute, in that, though the requisite number of votes were recorded, they were cast, not by the comptroller and the borough presidents, but by the deputy comptroller in lieu of the comptroller and commissioners of public works in the place of absentee borough presidents. The third cause of action declares that the board of estimate and apportionment failed to make a proper inquiry as to the value of the franchise granted and as to the adequacy of the compensation proposed to be paid thereunder. The fourth cause of action proceeds upon the claim that there was no public hearing, as required by law, before the board of estimate and apportionment when the franchise was granted. The fifth cause of action asserts that recent petitions have been filed with the board of estimate and apportionment seeking changes in the routes and otherwise, and that the granting of any amendment or modification of the original franchise would be illegal, notwithstanding the recent enactment of chapter 717 of the Laws of 1928 (adding sections 68-69-d to Transportation Corporations Law). Upon these motions the court cannot look beyond the allegations of the complaint. It will be observed that the complaint is devoid of any charge of corruption or bad faith on the part of any of the defendants, and the honesty and sincerity of purpose of city officials are in nowise assailed. The relief sought is, not that the franchise to and the contract with the Equitable Coach Company be set aside,
At the very threshold of this motion,' in so far as the first four causes of action are concerned, lies the objection that the plaintiff may not, under the guise of restraining the officials of the city from carrying out the grant and contract, virtually set aside, by indirection, the franchise hitherto granted and the contract heretofore made for the operation of the bus lines. Apparently the plaintiff recognizes that a franchise to operate a bus line upon the streets of a municipality within this State may not be set aside upon the application of an individual taxpayer. The power to attack such a grant resides in the State acting through the Attorney-General. Section 1208 of the Civil Practice Act specifically authorizes the Attorney-General to institute such an action in a proper case. The franchise to operate upon the streets is a grant from the sovereign power of the State, acting through a municipality, and whether or not such a franchise should be canceled can be determined only in an action brought in the courts of this State by the State to obtain that relief. (City of New York v. Bryan, 196 N. Y. 158; People v. Bleecker St. & Fulton Ferry R. R. Co., 140 App. Div. 611; affd., 201 N. Y. 594; Beekman v. Third Avenue R. R. Co., 153 id. 144.) As stated by Mr. Justice Lazansky in Marjohn Realty Co. v. City of Long Beach (122 Misc. 763, 767; affd., 211 App. Div. 805): “ The rights of a taxpayer cannot be greater than those of the city. If the city cannot maintain an action against the railway, the citizen cannot. The city cannot maintain an action to determine the status of a franchise. (City of N. Y. v. Bryan, 196 N. Y. 158.) ” In Matter of Clements (191 App. Div. 279), Mr. Justice Jay cox held: “ I think it is the right and duty of the Attorney-General alone to bring an action against a person who usurps, intrudes into, or unlawfully holds or exercises within the State a franchise.” It should not be forgotten that the franchise and the contract have the attributes of a property right. (People v. O’Brien, 111 N. Y. 1.) Moreover, no facts are alleged in these four causes of action upon which a judgment could be based enjoining, at the instance of plaintiff, the municipal authorities as individuals from carrying out the terms of the franchise and contract. The municipal officials would be censurable if they did not undertake to perform a contractual obligation binding upon the city.
The fifth cause of action differs from the preceding causes of action. It does not seek to enjoin the performance of an executed
The main proposition asserted by the plaintiff, with apparent confidence, upon the argument, arises in connection with the second cause of action; there it is claimed that the deputy comptroller and the commissioners of public works acted in place of the absent comp-
The foregoing views require the granting of the motions on behalf of all defendants to dismiss the complaint.