30 N.Y.S. 424 | New York Court of Common Pleas | 1894
On the argument of this motion the plaintiff asked for leave to amend his complaint by adding thereto an allegation to the effect that within the year immediately preceding the commencement of the action he paid a tax upon an assessment exceeding $1,000. Such an amendment is allowed, and thus the objection that the moving papers fail to show that the plaintiff is qualified, under the provisions of section 1 of chapter 301 of the Laws of 1892, to maintain this action, is removed.
The action is brought to restrain the defendants from doing an act alleged to be in excess of authority, and threatening a waste of or injury to the property of the defendant municipal corporation, the mayor, etc. It is instituted pursuant to the provisions of the
As against the remaining defendants, a majority of the board of commissioners of the sinking fund of the defendant municipal corporation, the action is maintainable only upon proof that they have done or are about to do some act the commission of which involves a waste of or injury to the corporate property, funds, or estate, or the performance of some illegal official act. Evidence of like circumstances is therefore requisite to authorize the restraint of their official acts by interlocutory injunction. No act which is-free from fraud or collusion, and which involves only the exercise of administrative discretion on the part of a municipal officer, will or can be restrained. Talcott v. Buffalo, 125 N. Y. 280, 26 N. E. 263 ;- Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471. The defendants are not arraigned upon any accusation which impugns their personal or official integrity. What, then, are the facts on which the .plaintiff predicates his claim to injunctive relief against the defendant sinking fund commissioners? In August, 1888, the Staten Island" Rapid-Transit Company wras the lessee from the mayor, etc., of the-ferry plying between the city of New York, at the foot of Whitehall street, and Staten Island, under a lease of which there then, remained about five years unexpired. On the 4th day of August, 1888, the mayor, etc., and the Staten Island Rapid-Transit Company entered into an agreement, in writing and under seal, whereby the latter corporation undertook to make extensive and valuable im
I am unable, after careful consideration of all the facts, and of the brief submitted by the learned counsel for the plaintiff, to accede to the validity of the plaintiff’s contentions. That the board of commissioners of the sinking fund of the defendant municipal corporation is authorized and lawfully charged with the duty to dispose of its ferry franchises to the highest bidder, and to let to the purchaser the wharf property connected with and necessary to ■its operation, is unquestionable. Starin v. Edson, 112 N. Y. 206, 19 N. E. 670. And, assuming that the agreement of August 4, 1888, was at its inception, and while it remained wholly executory, ultra vires, and therefore unenforceable against the municipality, because in excess of its law’ful authority to incur an indebtedness, it remains that the agreement was fully performed on the part ■of the Staten Island Rapid-Transit Company, such performance in reliance upon the promise to indemnify the latter corporation having resulted in the defendant municipal corporation’s gain of valuable improvements to its wharf property. Under such circumstances a plea of ultra vires must be regarded as inequitable, and would be unavailable to the defendant municipal corporation as a ■defense to the Staten Island Rapid-Transit Company’s demand for payment of the value of its improvements. Arms Co. v. Barlow, 63 N. Y. 62; Life-Raft Co. v. Roach, 97 N. Y. 378; Starin v. Edson, 112 N. Y. 206, 19 N. E. 670; Mayor v. Sonneborn, 113 N. Y. 423, 21 N. E. 121; Mayor v. Huntington, 114 N. Y. 631, 21 N. E. 998; City of Buffalo v. Balcom, 134 N. Y. 532, 32 N. E. 7.
Regarding the defendant municipal corporation’s obligation to indemnify the Staten Island Rapid-Transit Company to the extent of the value of its improvements to the former’s wharf property ■as indisputable, if the latter corporation should not succeed itself as purchaser of the franchise and lessee of the wharf property, it seems but the exercise of administrative discretion on the part of the officers of the municipality, upon the sale of the franchise and lease of the property, to secure the municipality against the consequences of its obligation by requiring the purchaser to relieve it therefrom, so long as such a requirement does not operate to destroy fair competition upon the sale, and so prevent the obtaining of the highest possible purchase price for the franchise. That such cannot be the result from the requirement that a purchaser and lessee other than the Staten Island Rapid-Transit Company shall pay to the last-mentioned corporation the value of its improvements is manifest from the further provision of the agreement of