26 A.D. 140 | N.Y. App. Div. | 1898
The plaintiff, as a taxpayer, has instituted this action to restrain the commissioners of the department of public parks and the commissioners of the board of electrical control of the city of New
. The section of the Code referred to provides that “ An action to obtain a judgment, preventing waste of or injury to the estate, funds or other property of a county, town, city or incorporated village of the State, may be maintained against any officer thereof, or any agent, commissioner or other person acting in its behalf, either by a citizen, resident therein, or by a corporation who is assessed for and is liable to pay, or, within one year before the commencement of the action has paid, a tax therein.” Chapter 531 of the Laws of 1881, as amended by chapter 301 of the Laws of 1892, so far . as the same is applicable to the question under consideration, provides that “all. officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good any property, funds or estate of such county, town, village or municipal corporation,” by any person whose assessment shall amount to $1,000, and who shall be liable to pay taxes thereon in . the county, town, village or municipal corporation, to prevent the waste or injury of whose property the action is brought.
Upon examining the complaint it is found that the plaintiff alleges that he is a resident and taxpayer of the city of New York; that
It will be observed that there is no allegation in the complaint, or the statement of any fact from which it can be inferred,, that the 'defendants, as commissioners of the department of public parks, or
In Ziegler v. Chapin (supra) the Court of Appeals said: “ But the action authorized by section 1925 of the Code is one which the taxpayer may bring against the public officer because of some fraud or bad faith on his part, or to restrain some illegal action. * * * ' If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud, and the courts are open for his protection and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act, and persists in carrying out the wasteful contract-, chat an action against him is needed, and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved. The Legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a taxpayer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents.” Here no acts, legal or illegal, honest or fraudulent, on the part of the officials sought to be restrained are alleged, and it requires neither authorities nor argument to show that an action cannot be maintained to restrain a public official, who has neither done, threatened nor intends to do any act whatevei-. As well might an action be maintained to restrain or suppress a nuisance before the nuisance had been created, threatened or attempted.
Yak Brunt, P. J., Barreto, Patterson and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.