95 N.Y.S. 875 | N.Y. Sup. Ct. | 1905
This is a taxpayer’s action to restrain the use for advertising purposes of a fence surrounding a portion of one of the public parks in the city of New York. The park in question is known as Bryant Park, and occupies the area
It is objected, however, that, although the commissioner’s act may be unauthorized and illegal, the plaintiff as a taxpayer has no standing to maintain this action, because it is not shown that there has been any waste of the city’s money or actual injury to its property. The statute authorizes an action by a taxpayer to (1) prevent any illegal official act, or (2) to prevent waste or injury to the public property or funds. Laws of 1892, chap. 301. In Warrin v. Baldwin, 105 N. Y. 534, it was said that if the act complained of is illegal “ the plaintiff is entitled to sue and to prevent the meditated violation of law, irrespective of the consequences of such violation. The statute assumes that any illegal official act is or may be injurious to the corporation when done by its servant, and allows him to he restrained simply because of the illegality.” In Bush v. Coler, 60 App. Div. 56, the court points out that the statute gives to the taxpayer two distinct causes of action, one of which is said to be to prevent an illegal act on the part of an officer, which does not depend upon whether such illegal act will cause any injury to such municipal corporation or not. In Ziegler v. Chapin, 126 N. Y. 342, an injunction was sustained to prevent an unauthorized act by public officers, although the court distinctly found that the complaint contained no sufficient allegations of waste. In Bush v. O’Brien, 164 N. Y. 205, the court recognized and pointed out the distinction between the two causes of action given by the statute, and held that where an illegal act was shown, it was not necessary also to show
I, therefore, conclude that the grant of the license to the defendants McNamara and Hart was unauthorized, illegal and void; that- the plaintiff as a taxpayer is entitled to maintain this action; and that an injunction should issue restraining the defendants and each of them from using or permitting the use of the fence in question for the exhibition of advertisements, and requiring them to remove the advertisements now displayed thereon, with ten dollars costs of motion to the plaintiff.
Judgment accordingly.