166 N.Y. 159 | NY | 1901
The appeal herein was allowed by the Appellate Division, which certified two questions for review: First. "Does the plaintiff's complaint in this action contain more than one cause of action? Second. Should the order of the Special Term of the Supreme Court requiring the plaintiff to amend his complaint, and the order of the Appellate Division of the Supreme Court affirming the same be reversed?"
This action was brought by the plaintiff, as a taxpayer of the village of Nunda, to obtain a judgment annulling a contract made by the board of trustees of the village with the defendants, Charles E. and Chester T. Foote, for the construction of an engine house and lockup, and to enjoin the trustees from paying the contractors therefor. The action is in equity and its purpose is to prevent the waste of the funds of the village. The complaint contains numerous allegations of illegal acts on the part of the board of trustees, i.e., in the conduct of the elections had for the purpose of determining whether such a building should be constructed and the amount that should be raised therefor, in the borrowing of money until the amount should be raised by taxation for the payment for the building, and in not complying with the provisions of the Labor Law by seeing to it that the contract contained an agreement on the part of the contractors that they would not permit or require more than eight hours' work in any one calendar day on the part of the laborers employed and that they would pay them therefor the prevailing rate of wages. *162
We think that but one cause of action is alleged in the complaint. The action, as we have seen, is in equity and the relief sought is the prevention of waste of the funds of the municipality by prohibiting payment to the contractors for the construction of the building. All of the alleged illegal acts on the part of the board of trustees, together with the alleged illegal contract entered into by them, have reference to the one building and to the one relief sought by the action.
The Special Term appears to have been of the opinion that a separate cause of action was alleged under chapter 567 of the Laws of 1899, known as the Labor Law. The complaint in this action does not allege that the plaintiff is a citizen, and for this reason it may fail to state a cause of action under the Labor Law, but if no cause of action is alleged the allegation referred to by the Special Term may be treated as surplusage and no amendment of the complaint requiring the causes of action to be separately stated and numbered is necessary. If, however, the plaintiff is a citizen, and a taxpayer as well, and brings the action to restrain illegal acts and waste on the part of municipal officers, we see no reason why he may not avail himself of any illegal acts, whether they arise under the Labor Law or any other statute, for the purpose of maintaining his action. We do not think that the allegations contained in this complaint constitute separate causes of action.
The order of the Appellate Division and that of the Special Term should be reversed and the motion denied, with costs. The first question certified is answered in the negative and the second in the affirmative.
PARKER, Ch. J., O'BRIEN, BARTLETT, MARTIN, VANN and LANDON, JJ., concur.
Ordered accordingly. *163
