Gerlach v. Brandreth

34 A.D. 197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1898
• Status: Published

Opinion

Willard Bartlett, J.:

In granting the motion for the dismissal of - the complaint, which was made before any testimony was taken, it is evident that the learned court, at Special Term, must have misapprehended or overlooked the allegations of the complaint, which are to be found in the subdivisions of the complaint numbered 4th and 8th.

In the. 4th subdivision it is alleged, in substance, that the charter of the village of Sing Sing,

* as amended in 1897 (Laws of 1897, chap. 496), empowered the board of trustees to assess, levy and. collect upon the real and personal property, within the limits of said village, a sum not to exceed $20,000 in any fiscal year, to be expended to defray the general expense of said village, and that the same statute declared that the board should have' no power, to contract any debt or liability or enter into any obligation or appropriate any money exceeding the amounts therein prescribed.

In the 8th subdivision of the complaint it is alleged that the defendants, who constitute the board of trustees of the village of Sing Sing, have contracted debts and liabilities and have entered into obligations and have appropriated money during the fiscal year ending on the second Tuesday in March, 1898, and have ordered drafts drawn upon the treasurer of the village therefor, “ and appropriated on the general expense account a sum exceeding the amount which, by law, they were entitled to expend, in the sum of six thousand seven hundred ($6,700). dollars.” Then follows an allegation that the said drafts are illegal and void as against the village.

We do not see why these averments are not sufficient to enable a taxpayer, like the plaintiff, to maintain a suit against public officers to restrain illegal official acts under the Code and statutes, authorizing this form, of action. (Code Civ. Proc. § 1925 ; Laws of 1892, chap. 301;* Talcott v. City of Buffalo, 125 N.Y. 280; Ziegler. v. Chapin, 126 id. 342.)

The opinion of the learned judge who heard the case at Special Term indicates that he gave no force or effect to the averment that the trustees, being empowered to appropriate not more than $20,000 for general expense in any fiscal year, had in fact appropriated in one such year $6,700 more than the law allowed, for which they had ordered drafts drawn on the village'treasurer. Such a state of facts presented a prima facie case of illegal official action, the further prosecution or consummation of which might well be opposed by a taxpayer’s suit, under the legislation to which we have referred. In such a suit it is not necessary to show, as the defendants here seem to suppose, that the plaintiff will suffer peculiar injury. It is enough for him to show that he has the status as a taxpayer which the statutes prescribe, and that the act of the defendants is one which the law forbids.

For these reasons, without reference to the other points discussed upon the argument, we think it was error to dismiss the complaint on the ground stated.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.

Laws of 1896, chapter 83.— [Rep;

Amending chapter 531, Laws of 1881.— [Rep.