124 Misc. 893 | N.Y. Sup. Ct. | 1925
This is an action by a taxpayer to recover moneys for the county of Livingston, paid for services and disbursements of a member of the board of supervisors, instituted on the ground of want of authority to authorize the employment; where it appears that the services were rendered and the disbursements made without col
Illegality is all that is claimed but it is an effective plea against a public officer who receives public moneys not authorized by law, although he gives value and in good faith, but not, it seems, against a public officer who pays such moneys, who must be shown to have acted in bad faith or with collusion or fraud. “ We must distinguish the liability of those who receive from the liability of those who pay.” (Stetler v. McFarlane, 230 N. Y. 400.) Good faith is a defense in one case but not in the other. The distinction is not free from criticism where the services are substantial or where valuable property has been received or disbursements have been made. Ignorance of the law ought not to excuse in one case any more than in the other. The public officer who pays the money is no better than he who, giving value, receives it. Public policy should require the one as well as the other to stand back of his acts within the same rule. The rule of collusion, fraud and bad faith is even extended to cases where a joint liability is sought, the payee being joined with the payer. (Wallace v. Jones, 195 N. Y. 511; Daly v. Haight, 224 id. 726.) So that it is not a question of the rendition of services and payment of disbursements, of the acceptance and retention of beneficial work and expenditures by the county, the adequacy of the returns for the moneys received, of good faith and equity, as claimed by the defendant, but, under the decisions, one purely of the legality of the transaction.
It is a taxpayer’s action governed by statute, one of the provisions of which is that upon the commencement of the action a bond shall be furnished. (General Municipal Law, § 51.) A bond was furnished but it did not comply with the statute which provides that “ if there be more than one party plaintiff,” and there was in this case when the action was brought, any two of the plaintiffs “ shall severally justify in the sum of five thousand dollars.” The bond furnished was executed by one of the plaintiffs and two sureties and even if the sureties, being freeholders of Livingston county, are to be treated as two of the plaintiffs, they justify only in the sum of $1,000. This is not a bond in accordance with the statute and was not sufficient to support the action and is not now sufficient since the amendments reduce the parties plaintiff to one who does not justify at all. These are not technicalities but conditions upon which alone the action may be maintained. The bond must now be treated as a nullity and the plaintiff is in the position of one
But if the filing of the bond be a mere matter of form, compliance with which is to be enforced by the defendant, the complaint does not set out a cause of action. The first cause of action is based upon the receipt of moneys for services and for disbursements in connection with condemnation proceedings in which the defendant supervisor was delegated or engaged or employed to do legal work for which some one had to be employed as the board as a whole could not do the work and did not possess the requisite professional training if it attempted to do it. The board was authorized to acquire lands by • condemnation for highway purposes (Highway Law, §§ 148, 150, as respectively amd. by Laws of 1924, chap. 460, and Laws of 1922, chap. 371), and, it being impracticable for it to conduct the proceedings as a body, it had authority and was compelled to delegate the conduct of the proceedings to some attorney or counsel. (People ex rel. Vaughn v. Supervisors, 52 Hun, 446, 449.) The only question is, whether or not it could delegate the work to the defendant, one of its members. It would be absurd to criticise the board for delegating this work to some one skilled in these proceedings, and if there was some member of the board who had the requisite training, there is no reason why the work could not be delegated to him. The members of a board of supervisors are not limited to the compensation that they receive for attending sessions of the board. There are many other services for which they may legally be paid. It is the common practice for individual members or committees to perform such additional services and to receive compensation therefor. The statute authorizes it. A supervisor of Livingston county may receive compensation for any services in connection with the ministerial business of the board which has been lawfully committed to him, that is, “in any investigation or other duty which may be lawfully committed to him by the board, except for services rendered when the board is in session.” (County Law, § 23, subd. 8, as amd. by Laws of 1919, chap. 497.) The work which the defendant performed, not being such as the board could conveniently discharge itself or through a committee, was
The second cause of action is also ill founded. This part of the complaint is based upon the claim that the defendant performed services for the superintendent of the poor for which he was not entitled to receive compensation from the county. The nature of these services is not shown except that it is alleged that a part of it was personal services for the superintendent and not public services for the county. This allegation is a mere conclusion
The complaint is dismissed upon the ground that the complaint does not state a cause of action, with leave to amend within twenty days from the service of a copy of an order in accordance herewith and upon the payment of ten dollars costs.