§ 51 — Prosecution of officers for illegal acts

New York § 51

• Jurisdiction: New York
• Law GMU: General Municipal
• Art. 4: Negligence and Malfeasance of Public Officers; Taxpayers' Remedies

Text

§ 51. Prosecution of officers for illegal acts. All officers, agents,\ncommissioners and other persons acting, or who have acted, for and on\nbehalf of any county, town, village or municipal corporation in this\nstate, and each and every one of them, may be prosecuted, and an action\nmay be maintained against them to prevent any illegal official act on\nthe part of any such officers, agents, commissioners or other persons,\nor to prevent waste or injury to, or to restore and make good, any\nproperty, funds or estate of such county, town, village or municipal\ncorporation by any person or corporation whose assessment, or by any\nnumber of persons or corporations, jointly, the sum of whose assessments\nshall amount to one thousand dollars, and who shall be liable to pay\ntaxes on such assessment in the county, town, village or municipal\ncorporation or by any person who owns shares in a cooperative housing\ncorporation where the pro rata share of the assessment attributable to\nsuch shares shall amount to one thousand dollars (or by any number of\nsuch persons, jointly, the sum of whose pro rata shares shall amount to\none thousand dollars) and where the cooperative housing corporation\nshall be liable to pay taxes on such assessment in the county, town,\nvillage or municipal corporation to prevent the waste or injury of whose\nproperty the action is brought, or who have been assessed or paid taxes\ntherein upon any assessment of the above-named amount within one year\nprevious to the commencement of any such action, or who has been so\nassessed but has not paid nor shall be liable to pay any or the full\namount of taxes on such assessment because of a veteran's exemption\ntherefrom pursuant to section four hundred fifty-eight of the real\nproperty tax law, or who has been so assessed but has not paid nor shall\nbe liable to pay any or the full amount of taxes on such assessment\nbecause of an exemption therefrom granted to persons sixty-five years of\nage or over or their spouses pursuant to the real property tax law. Such\nperson or corporation upon the commencement of such action, shall\nfurnish a bond to the defendant therein, to be approved by a justice of\nthe supreme court or the county judge of the county in which the action\nis brought, in such penalty as the justice or judge approving the same\nshall direct, but not less than two hundred and fifty dollars, and to be\nexecuted by any two of the plaintiffs, if there be more than one party\nplaintiff, providing said two parties plaintiff shall severally justify\nin the sum of five thousand dollars. Said bond shall be approved by\nsaid justice or judge and be conditioned to pay all costs that may be\nawarded the defendant in such action if the court shall finally\ndetermine the same in favor of the defendant. The court shall require,\nwhen the plaintiffs shall not justify as above mentioned, and in any\ncase may require two more sufficient sureties to execute the bond above\nprovided for. Such bond shall be filed in the office of the county clerk\nof the county in which the action is brought, and a copy shall be served\nwith the summons in such action. If an injunction is obtained as herein\nprovided for, the same bond may also provide for the payment of the\ndamages arising therefrom to the party entitled to the money, the\nauditing, allowing or paying of which was enjoined, if the court shall\nfinally determine that the plaintiff is not entitled to such injunction.\nIn case the waste or injury complained of consists in any board, officer\nor agent in any county, town, village or municipal corporation, by\ncollusion or otherwise, contracting, auditing, allowing or paying, or\nconniving at the contracting, audit, allowance or payment of any\nfraudulent, illegal, unjust or inequitable claims, demands or expenses,\nor any item or part thereof against or by such county, town, village or\nmunicipal corporation, or by permitting a judgment to be recovered\nagainst such county, town, village or municipal corporation, or against\nhimself in his official capacity, either by default or without the\ninterposition and proper presentation of any existing legal or equitable\ndefenses, or by any such officer or agent, retaining or failing to pay\nover to the proper authorities any funds or property of any county,\ntown, village or municipal corporation, after he shall have ceased to be\nsuch officer or agent, the court may, in its discretion, prohibit the\npayment or collection of any such claims, demands, expenses or\njudgments, in whole or in part, and shall enforce the restitution and\nrecovery thereof, if heretofore or hereafter paid, collected or retained\nby the person or party heretofore or hereafter receiving or retaining\nthe same, and also may, in its discretion, adjudge and declare the\ncolluding or defaulting official personally responsible therefor, and\nout of his property, and that of his bondsmen, if any, provide for the\ncollection or repayment thereof, so as to indemnify and save harmless\nthe said county, town, village or municipal corporation from a part or\nthe whole thereof; and in case of a judgment the court may in its\ndiscretion, vacate, set aside and open said judgment, with leave and\ndirection for the defendant therein to interpose and enforce any\nexisting legal or equitable defense therein, under the direction of such\nperson as the court may, in its judgment or order, designate and\nappoint. All books of minutes, entry or account, and the books, bills,\nvouchers, checks, contracts or other papers connected with or used or\nfiled in the office of, or with any officer, board or commission acting\nfor or on behalf of any county, town, village or municipal corporation\nin this state or any body corporate or other unit of local government in\nthis state which possesses the power to levy taxes or benefit\nassessments upon real estate or to require the levy of such taxes or\nassessments or for which taxes or benefit assessments upon real estate\nmay be required pursuant to law to be levied, including the Albany port\ndistrict commission, are hereby declared to be public records, and shall\nbe open during all regular business hours, subject to reasonable\nregulations to be adopted by the applicable local legislative body, to\nthe inspection of any taxpayer or registered voter, who may copy,\nphotograph or make photocopies thereof on the premises where such\nrecords are regularly kept. This section shall not be so construed as to\ntake away any right of action from any county, town, village or\nmunicipal corporation, or from any public officer, but any right of\naction now existing, or which may hereafter exist in favor of any\ncounty, town, village or municipal corporation, or in favor of any\nofficer thereof, may be enforced by action or otherwise by the persons\nhereinbefore authorized to prosecute and maintain actions; and whenever\nby the provisions of this section an action may be prosecuted or\nmaintained against any officer or other person, his bondsmen, if any,\nmay be joined in such action or proceeding and their liabilities as such\nenforced by the proper judgment or direction of the court; but any\nrecovery under the provisions of this article shall be for the benefit\nof and shall be paid to the officer entitled by law to hold and disburse\nthe public moneys of such county, town, village or municipal\ncorporation, and shall, to the amount thereof, be credited the defendant\nin determining his liability in the action by the county, town, village\nor municipal corporation or public officer. The provisions of this\narticle shall apply as well to those cases in which the body, board,\nofficer, agent, commissioner or other person above named has not, as to\nthose in which it or he has jurisdiction over the subject-matter of its\naction.\n