24 N.Y.S. 1075 | N.Y. Sup. Ct. | 1893
Plaintiff is a taxpayer in the city of Utica, upon an assessment of more than $1,000, and brings this action “to obtain a judgment preventing waste of or injury to the estate, funds, or other property of” the city of Utica. See section 1925 of the Code of Civil Procedure. This section was intended “to protect against the fraud or bad faith of the officer, or to restrain illegal action on his part.” Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. Rep. 471. After proceedings were taken against eight of the aldermen of the city to punish them for contempt in violating an injunction order of this court, by a vote of 8 of the 12 aldermen a resolution was passed August 31, 1892, that counsel be employed for their defense in said contempt proceedings, and the resolution was in the following language:
“Resolved, that a committee consisting of the president of the common council and two aldermen be appointed, with power to employ suitable counsel to defend the proceedings in contempt instituted by the service of papers on the nresident. Daniel McGucken.”
“The employment of counsel pursuant to a resolution of the common cduncil waS> a contract in behalf of the city, and, if valid, rendered it liable to pay a reasonable compensation to the gentlemen employed for such services as they should render. It must be presumed from the judgment of conviction that the eight aldermen were guilty of contempt, and lawfully punished. Their action, therefore, in employing counsel in the! name of the city, was an attempt to make the city liable for their own obligations, because the city is not bound to pay the expenses of defending an illegal act of its officers, even if purporting to be done in its behalf. As the evidence stands before me, therefore, with the judgment of conviction unreversed, their action was unauthorized and illegal.”
.We find no occasion to differ from the "views expressed by the leárned trial judge. Although "it did not appear at the special term that any claim or bill for services of the counsel who acted in defense of the eight aldermen had ever been presented to the common council, allowed, and audited, yet, upon the evidence found in the vase made at the special term, and the papers therein referred to, It is quite obvious that valuable services were performed after the passage of the resolution, and that those services had not been paid for; and the inference is justified that it was the expectation of the eight defendants that such services would be presented to the common council for payment, and perhaps it is not unreasonable to suppose that the counsel who performed those services expected that they would be paid in the manner suggested. It was not improper for the trial court to declare the employment of counsel not binding upon the city, and that its funds were not liable therefor. In dealing with the situation, and the several acts of the eight aldermen, the trial judge, in his opinion, said:
“Their action is in the nature of a threat to waste the funds of the city, by paying them out for services rendered in defending themselves against a charge of personal misconduct, of which they were guilty. I think that the plaintiff is entitled to a permanent injunction restraining the defendants*1079 from auditing, allowing, or paying, out of moneys belonging to the city, any part of the expenses incurred by employing counsel to defend the contempt proceedings. * * *”
2. It is insisted that the special term erred “in awarding costs of this action against the aldermen who were convicted of contempt.” This action was brought on the equity side of the court; and the rule regulating costs is found in section 3230 of the Code of Civil Procedure, which provides that in such an action as this “the court may, in its discretion, award costs to any party, upon the rendering of a final judgment.” In considering the question whether the discretion was properly exercised or not, regard must be had to the circumstances attending the other branch of the case which was presented to the special term. In the plaintiff’s complaint, facts were stated upon which the plaintiff asked a perpetual injunction against the defendants—
“From extending, or in any way or manner attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $50,000 for paving work in the city of Utica for the year 1892, beyond $6,000, as any part of any tax against any taxpayer or any taxable property in the city of Utica, or any ward therein. Also, from causing, suffering, or permitting, or attempting to do so, any tax for said sum of $50,000, beyond $6,000, to go into or upon the tax lists of said city, for any ward therein, against any taxpayer or taxable property. Said officers, respectively, shall neither sign nor deliver any assessment roll or tax list with any such tax in it. From extending, or in any manner or way attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $8,000 for or on account of building the Twelfth ward schoolhouse in the city of Utica, or any part of any tax against any taxpayer or any taxable property in the city of Utica, or any ward therein. Also from causing, suffering, or permitting, or attempting to do so, any tax for said sum of $8,000 to go into or upon the tax lists of said city, for any ward therein, against any taxpayer or taxable property. Said officers, respectively, shall neither sign nor deliver any assessment roll .or tax list with any such tax in it.”
The special term refused to grant the prayer, in that regard, and under its decision a judgment has been entered to the effect that the plaintiff is not entitled to the relief asked for in the language quoted. In Law v. McDonald, 9 Hun, 23, it was held as follows: “Where, in an action in equity, each party succeeds as to a part of the matters in litigation between them, costs are not allowed to either as against the other;” and in that case the judgment appealed from was “modified so as to stand without costs to either party, as against the other.” A similar rule was laid down in Crippen v. Heermance, 9 Paige, 211; McCulloch v. Vibbard, (Sup.) 1 N. Y. Supp. 610; Ten Eyck v. Holmes, 3 Sandf. Ch. 428; Couch v. Millard, 41 Hun, 215. In Rosa v. Jenkins, 31 Hun, 384, it was held by this court that the discretion exercised in an equity action, as to costs, may be reviewed here. Rundle v. Allison, 34 N. Y. 185, contains nothing inconsistent with the rules already stated. We thmk +h > judgment should be modified, so far as ‘it awards costs against the defendants, and a clause inserted therein to the effect that neither party shall recover costs against the other; and, as so modified, we