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and declare the colluding or defrauding officials personally responsible therefor, and out of his property, and that of his bondsmen, if any, provide for the collection or repayment thereof, so as to indemnify and save harmless the said county, town, village or municipal corporation from a part or the whole thereof; and in case of a judgment, the court may, in its discretion, vacate, set aside and open said judgment, with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in its judgment or order, designate and appoint. All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts, or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this State are hereby declared to be public records, and shall be open, subject to reasonable regulations, to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer. This section shall not be so construed as to take away any right of action from any county, town, village or municipal corporation, or from any public officer, but any right of action now existing, or which may hereafter exist, in favor of any county, town, village or municipal corporation, or in favor of any officer thereof, may be enforced by action or otherwise, by the persons hereinbefore authorized to prosecute and maintain actions; and whenever by the provisions of this section an action may be prosecuted or maintained against any officer or other person, his bondsman, if any, may be joined in such action or proceeding, and their liabilities as such enforced by the proper judgment or direction of the court; but any recovery under the provisions of this act shall be for the benefit of and shall be paid to the officer entitled by law to hold and disburse the public moneys of such county, town, village or municipal corporation, and shall, to the amount thereof, be credited the defendant in determining his liability in the action by the county, town, village or municipal corporation or public officer. The provisions of this act shall apply as well to those cases in which the body, board, officer, agent, commissioner or other person above named has not, as to those in which it or
he has jurisdiction over the subject-matter of its action." [Thus amended by Laws 1887, chap. 673.]
Laws 1881, chap. 531, was passed to prevent fraudulent recoveries of judgments by default or by collusion, and not for the purpose of giving every taxpayer within the limits of the town the right to litigate afresh questions fairly, fully, and honestly presented by way of defense, and solemnly adjudicated adversely to the town. Lee v. Board of Supervisors, Jefferson Co., 62 How. 201 (1881).
In an action under Laws 1881, chap. 531, to adjudge and declare illegal and unjust, claims held by numerous individuals and to enjoin the proper officer from paying them, such individuals, or some representative of them, are necessary parties. Smith v. Crissey, 13 Abb. N. C. 149 (1883). In an action, under Laws 1881, chap. 531, to prevent a lease of wharf and ferry property it was held that the act did not disable a taxpayer who might have been desirous of obtaining the leasehold interest, or who bid at the sale, or previously owned a leasehold term in the same property, from maintaining such an action as this. Such a person is authorized to maintain the action, if, upon the facts appearing, the disposition proposed to be made of the property and the ferry franchises was illegal. Hull v. Ely, 2 Abb. N. C. 440, distinguished; Starin v. Mayor, 42 Hun, 549 (1886); reversing S. C., 1 N. Y. St. Repr. 544 (1886).
An action will lie, under Laws 1881, chap. 531, to prevent officers of a city from wasting its property by cancelling and discharging a judgment in its favor upon payment of a sum much less than its value for the purpose of favoring the debtor at the expense of the city. Standart v. Burtis, 46 Hun, 82 (1887).
In a particular case against the treasurer of Queens county it was held that an action could be maintained under Laws 1881, chap. 531. Warrin v. Baldwin, 105 N. Y. 534 (1887); reversing S. C., 35 Hun, 334.
Laws 1881, chap. 531, authorizes actions only against officers acting on behalf of a "county, town, village or municipal corporation." Hence, where the mayor of New York city did not act in making certain appointments, on behalf of the municipal corporation, an injunction issued in an action to prevent such appointments is void. People ex rel. Roosevelt v. Edson, 20 J. & S. 53 (1885); reversing S. C., 19 id. 238 (1885).
Code of Civil Procedure.
"§ 1925. 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 mainta'n d 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 asssessed for and is liable to pay, or, within one year before the commencement of the action, has
paid a tax therein. This section does not affect any right of action in favor of a county, city, town or incorporated village, or any public officer." [Thus amended by Laws 1892, chap. 524.]
Whether under Code of Civil Procedure, § 1925, an action can be maintained to restrain a supervisor from attempting to levy a tax for the purpose of paying off bonds of the town, when such bonds are illegal and void because of some irregularity or defect of the proceedings under which they were issued,- Query. Hill v. Peekskill Savings Bank, 26 Hun, 161 (1892).
Section 1925 of the Code is a substantial re-enactment of Laws 1872, chap. 161, except for the addition of the words "or by a corporation" by the amendment of 1892.
Taxpayers can sue in equity under Laws 1872, chap. 161, to cancel an illegal issue of municipal bonds, and to restrain the collector from paying over. Newton v. Keech, 9 Hun, 355 (1876).
Where the bonds of a town have been issued to a railroad corporation in payment for stock, by commissioners appointed by and under a judg ment void for want of jurisdiction in proceedings under Laws 1869, chap. 907, p. 2303, an equitable action is maintainable at the suit of a taxpayer, under Laws 1872, chap. 161, p. 467, to restrain the negotiation or payment of the bonds, and to compel their cancellation, but the town should surrender the consideration given for the bonds. Metzger v. Attica & Arcade R. R. Co., 64 N. Y. 171 (1879).
The plaintiffs sued under the Taxpayers Act of 1872 to restrain the trustees of a village from providing a water supply therefor, alleging that the defendants acted without taking the oath of office, and that the assessment-roll used in the election which decided in favor of the water supply was invalid as made by officers who had not qualified, and as containing names not properly on it, and omitting others which ought to be on it. Held, that the defendants as de facto officers were competent to lay an assessment, and that the defects in the assessment-roll could not be inquired into collaterally. Downs v. Village of Irvington, 66 How. Pr. 93 (1883).
For an instance of an action brought in the city of New York under section 1925, above quoted, see Bird v. Mayor, 33 Hun, 396 (1884).
A taxpayer of New York cannot restrain officials acting in behalf of the city of Brooklyn. Ottendorfer v. Agnew, 13 Daly, 16 (1884).
An action to vacate the audit of an illegal claim, which a board of audit had no authority or jurisdiction to audit, or when the audit was fraudulent or collusive, and to restrain the collection of a tax therefor, may be maintained by a taxpayer under Laws 1872, chap. 161, p. 467. Osterhoudt v. Rigney, 98 N. Y. 222 (1885); affirming S. C., 27 Hun, 167 (1882).
The statute has not, however, abrogated the rule that the acts of a board of audit, within its jurisdiction, in the absence of fraud and
collusion, are conclusive, and cannot be questioned in a collateral proceeding. Id.
That act does not confine the right of action to cases where, before it was passed, an equitable action could have been brought. Id.
The board of audit of a town has no jurisdiction to audit and allow claims which have been passed upon and rejected upon the merits by a prior board. Id.
Other cases argued at the same time with the above case, and presenting the same questions, were: Osterhoudt v. Brackett, 98 N. Y. 637 (1885); Same v. Butler, id.; Same v. Murphy, id.; Same v. Trodden, id.; Same v. Hyland, id. See, also, these cases in the court below, 27 Hun, 167 (1882).
The act of 1872 as re-enacted in Code of Civil Procedure, § 1925,— held, not to support an action by taxpayers to cancel town railroads bonds in the hands of a bona fide purchaser, on the ground that the requisite consents were not obtained. Alvord v. Syracuse Savings Bank, 98 N. Y. 599 (1885); affirming 34 Hun, 145 (1884).
If bonds issued in aid of the construction of a railroad, under Laws 1869, chap. 907, are, while in the hands of the commissioners, void for any reason, or the stock for which the commissioners are about to exchange them, worthless, doubtless the commissioners might, under Laws 1872, chap. 161, be restrained from disposing of them; and even after the exchange, if the stock was worthless, so that the bonds were withont consideration, the company, and the defendant as its officer and agent, might be restrained from negotiating them. Farnham v. Benedict, 39 Hun, 22 (1886).
The enumeration in the act of 1872 of the " officers, agents, commissioners or other persons, acting for or in behalf of any county, town, or municipal corporation," as the persons against whom an action may be brought, does not dispense with the necessity of joining all other persons who will be directly affected by the judgment and are necessary parties to a complete determination of the controversy. Osterhoudt et al. v. Board of Supervisors of the County of Ulster et al., 98 N. Y. 239, 244 (1885).
The action under these statutes can only be maintained against the town, its officers or agents. The bondholders are proper parties to be joined with the town, but the action cannot be maintained against them alone. Calhoun v. Millard, 16 N. Y. St. Repr. 46 (1888).
For various cases brought under this act, see Dows v. Village of Irvington, 13 Abb. N. C. 162 (1883); Hills v. Peekskill Savings Bank, 26 Hun, 161 (1882); reversed S. C., 101 N. Y. 490 (1886); Roosevelt v. Mayor, 1 How. Pr. (N. S.) 205 (1884); Sherman v. Trustees Clifton Springs, 27 Hun, 390 (1882); Strange v. Cook, 47 id. 46 (1888).
"It does not appear to me that the town, as a corporate body, can have a standing in court to vindicate the individual rights of the tax
payers." Denio, J., in Town of Guilford v. Supervisors of Chenango, 13 N. Y. 143, 147 (1855).
In this last case an action was brought in the name of the town to restrain the supervisors of the county from levying and collecting from the taxable property of the citizens of the town, a tax claimed to have been illegally imposed by the legislature. The case was decided on the point that the statute imposing the tax was valid.
A taxpayer cannot sue city officials as such, upon a cause of action common to all taxpayers. The complaint must be in the name of the attorney-general. Roosevelt v. Draper, 23 N. Y. 318 (1861); affirming 16 How. Pr. 137 (1861); Korff v. Green, id. 140 (1858).
In Ayres v. Lawrence, 63 Barb. 454 (1872); followed in Ayres v. Lawrence, 1 Thomp. & C. Add. 5, it was held that taxpayers have no right to an injunction restraining the issue of town bonds, when it was not claimed that plaintiffs had any interests other than those possessed by all taxpayers of the town. The statutes (Laws 1872, chap. 161, p. 467; Laws 1869, chap. 907), were not noticed in the opinion of the court. The Court of Appeals in reversing a judgment of the General Term, dismissing the complaint in the same case, rely upon these statutes to sustain such an action. Ayres v. Lawrence, 59 N. Y. 192 (1874).
Allegations in a complaint that plaintiffs were, as residents and taxpayers of the town, liable to assessment and taxation, and were residents and taxpayers and owners of real and personal property liable to assessment and taxation therein at the time of the occurrence of the several acts mentioned in the complaint - held, a sufficient compliance with the statute authorizing an action by any person residing in such county, town or municipal corporation, assessed for and liable to pay taxes therein, or who has paid taxes therein within one year previous to the commencement of any such action." Id.
In Kilbourne v. St. John, 59 N. Y. 21 (1874), the Court of Appeals held that one showing no other right than as a taxpayer could not sue in equity to restrain railroad commissioners of a town from paying out moneys paid to them by the collector of a tax claimed to be illegal.
The last case, as far as it conflicts with Ayres v. Lawrence, 59 N. Y. 192, does not seem to have been followed. In the latter case the dissenting judges in Kilbourne v. St. John were with the majority of the court, and Grover, Folger and Johnson dissented. It is said in Newton v. Keech, 9 Hun, 360 (1876), that suit in Kilbourne v. St. John was commenced before Laws 1872, chap. 161, p. 467, took effect.
Taxpayers having no greater interest in the subject-matter than the whole body of taxpayers cannot sue to prevent, restrain or set aside proceedings of public officers, and of persons acting under legislative authority. Comin v. Supervisors of Jefferson, 3 Thomp. & C. 296 (1874); affirmed, 64 N. Y. 626 (1876).
So held in a suit brought to restrain the levy of a tax to collect the interest on railroad bonds. Id.