Bush v. Coler (60 A.D. 47, 1901)

Ingraham, J.:

In this action a taxpayer, under the authority of chapter 301 of the Laws of 1892, seeks to restrain the payment of certain ■ judgments against the city of Hew York, entered upon offers of the corporation counsel to allow judgments to be entered in favor of the individual defendants other than the comptroller, which, as alleged in the complaint, were executed and verified by the corporation counsel of the city of Hew York, claiming to be duly authorized by the said municipal corporation to make the same on its behalf, but that said offers of judgment were not entered into, made, approved or authorized by the comptroller, or by the mayor of the city of Hew; York, or its common council, or any of its officers or departments empowered so to do, and that the said corporation counsel'was and is wholly without power to enter into the said alleged compromise, agreement or contract, and to execute or deliver the said offers, or any of them, and that his acts in so doing, and that each and every of the judgments entered thereon were and are wholly illegal and void. The defendants separately demurred to this complaint, which demurrers were sustained. Upon appeal to the Court of Appeals the judgment sustaining the demurrer interposed by the individual defendants was reversed. (Bush v. O’Brien, 164 N. Y. 208.) This appeal is from the judgment sustaining the demurrer interposed by the comptroller.

The statute under which the action is brought (Laws of 1892, chap. 301) provides : “ All officers, agents, commissioners and other 'persons acting, or who have acted for and on.behalf of any * * * municipal corporation in this State, and each and every one of them, may be prosecuted and an action or potions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore a,nd make good any property, funds or estate of such *• * * municipal corporation by any person or corporation whose assessment * * * shall amount to one thousand dollars .* * In case the waste or injury complained of consists in any board, officer or agent in any * * * municipal corporation, by collusion or otherwise * * * paying or conniving at the * * * payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses, or any item or part thereof against or by such * * * municipal corporation, or by permitting a judgment or judgments to be recovered against such * * * municipal corporation * * * either by default or without the interposition and proper presentation of any existing legal or equitable defenses, * * * the court may, in its discretion, prohibit the payment or collection of any such claims, demands, ■ expenses or judgments, in whole or in part * * * ; and in case pay sqch judgment, would justify the court in enjoining him from doing what it is not alleged he intends or has threatened to do. But it would seem as though this question was involved in the determination of the demurrer interposed by the individual defendants, for if these allegations were not sufficient to sustain an action to prevent the comptroller from paying the judgments, there was certainly no cause of action alleged against the individual defendants where the only judgment in the action could be one against the comptroller, the individual defendants being simply parties to the action, as those whose rights would be affected by the judgment against the comptroller. The Court of Appeals having held that a good cause of action was alleged against the individual defendants, must necessarily have determined that, upon the facts alleged ■ being proved, the court would be justified in enjoining the comptroller -from paying these judgments, and, upon a demurrer to the complaint by the comptroller, we are not justified in holding, in view of this determination of the Court of Appeals, that the complaint alleges no cause of action against him.

It follows that the judgment appealed from must he reversed and the demurrer overruled, with costs to the plaintiff, with leave to the defendant to withdraw the demurrer and answer upon payment of costs in this court and in the court below.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment reversed and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and answer upon payment of costs in this court and in the court below.