9 N.Y. 318 | NY | 1861
Assuming that the grant of the land under water executed to the defendant Yamum may have been either void or voidable for any or all.the reasons suggested in the complaint, the question which presents itself in the first instance, is whether the plaintiff sustains such a relation to the subject as will enable him to maintain a suit to set the conveyance aside. He is a resident citizen of the city of Hew York, and is the owner of real and personal property which is liable to be assessed for taxes therein; and he is moreover, a creditor of the city to the amount of more than $100. The defendants’ counsel maintain that neither of these characters entitle him to sue for such a cause.
I. As a resident citizen, and a person liable to be taxed, he has no other rights than such as are common to all the people of that community who own property; and we have decided upon full consideration that it requires some individual interest, distinct from that which belongs to every inhabitant of the town or county, to give the party complaining a standing in court, where it is an alleged delinquency in the administration of public affairs which is called in question. (Doolittle v. Supervisors of Broome County, 18 N. Y., 155.) The fact of owning taxable property is not such - a peculiarity as to take the case out of the rule, for all property, with very limited exceptions, is taxable, and everybody either has, or is capable of acquiring, property. Liability to contribute to the public burdens, where there are no privileged classes, is 'the lot of every member of the State, and a large proportion of all the acts of government, either general or local, involves questions of expenditure, and affects more or less the subject of taxation. If a plaintiff has taxable property at the time he commences his action, he may not have it when the next assessment for purposes of taxation is made; and if he have none when the act complained of is committed, he may be a large taxpayer when that act produces its result in increased taxation. The actual liability of the plaintiff to injury consists in his belonging to a community in which every person is subject to pay taxes of all he possesses. An act of administration likely to produce
The difference between a municipal corporation and the ordinary official agencies for the government of a local division of the State consists, mainly, in the capacity of the former to sue and be sued, and to contract under a common seal and in a common name. This circumstance does, no doubt, expose a community - thus governed to some suits to which the latter is not exposed. Thus it has been held in a great many cases that a city, or an incorporated village, may be sued for negligence in not repairing the streets, sidewalks, &c. But this distinction does not aid the plaintiff in this case. His difficulty is, not that the corporation is not the proper party representing the public to be sued, provided a cause of action exists which the plaintiff can enforce. The defect is the want of a proper party plaintiff. The corporation represents the interest liable to be affected by the remedy sought; but the plaintiff does not represent the whole public, who are the parties claimed to be aggrieved. I am very confident that the plaintiff cannot sustain this action, in his character as a resident citizen and taxpayer.
H. The right to sue, as a creditor holding shares of the city stock, depends upon other considerations. The persons similarly situated are probably numerous; but the rights which
The question, then, is, whether the plaintiff, as a creditor, has stated a title for the relief which he claims against the defendants. His case, according to the complaint, is, briefly, that property, the proceeds of the sales of which were pledged and appropriated for the payment of the city debt, has been sold for less than its value, and that, in making the sale, pre cautions provided by law for securing an adequate price have not been taken. This, and the charge that an office-holder tinder the city government, who was prohibited by law from being concerned in the purchase of city property, was interested in this purchase, constitutes the whole of the case. It is not stated that there has been any default in the payment of interest, or that the principal of the debt has become due, nor that the debt is in any way insecure, nor that the plaintiff is under any apprehension that he will sustain a loss. It is, indeed, averred th at the debt of the corporation is much larger than its property; but public or municipal debts are not based upon accumulated property, but on the faculty of taxation and the pledge of the public faith.
It will be necessary to ascertain what legal rules apply to the issuing of grants of this kind, namely, of land under water; and, upon a careful examination of the ordinance relating to the sinking fund, it will be perceived that they are distinct from those -which regulate the sales of other real estate. Sections 11 to 16, inclusive, of title 4, relate to such grants. The property not required to be put up at auction, and no previous notice is necessary to be given of the time and place of sale, as is the
I am of opinion that Mr. Draper, as a Governor of the Almshouse, was forbidden by the city charter to be concerned in such a purchase. The persons prohibited from being in any way interested in the purchase of any real estate or other property belonging to the corporation are the members of the Common Council, heads of departments, chiefs of bureaus and their deputies and clerks, and any “other officer of the said corporation. ” (Laws of 1849, p. 483, § 19.) The almshouse department is a branch of the city government, and Mr. Draper was one of its heads or chief officers (id., §17). If there could be any doubt as to this, he is certainly an officer of the corporation. There is, of course, a far stronger reason for prohibiting members of the Common Council and the Commissioners of the Sinking Fund from being interested in such sales, in which they would have a direct agency by virtue of their offices, than for attaching the disability to one filling the Dositioh held by the defendant Draper; but the legislature thought fit to extend it to all the corporation officers, including, of course, the Governors of the Almshouse, and we cannot
This brings me to the consideration of what I conceive to be a fatal defect in the plaintiff’s case, putting it in the aspect of a suit by a creditor. He has no specific or general hen upon this property. He has, no doubt, an interest; and I think he has such a legal right to have the funds mentioned in the ordinance correctly administered,"in order to subserve the purposes for which they were designed, as might be enforced by the courts, in a proper case. But the title of the city property, including that which was the subject of this grant, was in the corporation. The creditors have not even an equitable title. The duty of the city officers, entrusted by the sinking fund officers with its disposition and management, is a public governmental duty, and not a private one, for which they are generally responsible to the creditors; but if they do an act which produces injury to them, and which cannot be justified as the exercise of a discretion with which they are clothed, the individuals are, no doubt, responsible; and so, if an act is threatened, the direct and necessary tendency of which is to deprive the creditors of their security to an extent which will hazard the realization of their demands, the law, in my opinion, will afford a preventive remedy. But the complaint in this case does not present any such features. It assumes a right, so far as the plaintiff’s claims as a creditor are asserted, to question any sale of the portions of the city property referred to in the sinking fund ordinance, as though it was subject to an equita
I am in favor of affirming the judgment of the Supreme Court.
took no part in the case; James, J., dissented from so much of the preceding opinion as holds Draper, a Governor of the Almshouse, to be within the statute prohibiting city officers from having an interest in the purchase of corporation lands: all the other judges concurring,
Judgment affirmed.