Opinion
December, 1901.
H.A. Montfort for plaintiff.
F.H. Van Vechten for defendants.
The demurrer to the complaint that it does not state facts sufficient to constitute a cause of action must be sustained. Any right of action which the town of Jamaica had against the lessees to set aside the leases as voidable or fraudulent passed, I suppose, to the defendant the city of New York (City Charter, sec. 1616). But the right of action which is given to taxpayers by the statutes allowing suits to be brought by them to prevent illegal official acts and waste of the property or funds of municipal corporations, is against guilty officials only. Such statutes do not enable taxpayers to bring all suits which a municipal corporation neglects to bring, regardless of whether they be against such officials (Ch. 301, L. 1892; Code Civ. Pro. sec. 1925). The first of these statutes enables tax-payers to maintain suits against "officers, agents, commissioners and other persons acting for" a municipal corporation "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 and make good any property, funds or estate" of such municipal corporation; and the second is in substantially the same terms, except that it does not provide for a restoration. This suit is not against the officials who did the official acts complained of. It is against the lease-holders to annul the leases, the city being made a party as successor to the town of Jamaica, and the comptroller only because he is collecting the rents under the leases, which it is his duty to do. It is not covered by the said statutes at all. They do not provide for suits against municipal corporations, but only against officials thereof. They simply enable tax-payers to rake their officials over the coals in court. When such officials are so sued, the municipal corporation, or any one else, may be made a co-defendant when necessary to a complete and binding judgment upon every one interested; but that is only incidental to the cause of action against the officials. If this suit could be maintained irrespective of such statutes (which I do not need to pass upon — Overton v. Village of Olean, 37 Hun, 47; Roosevelt v. Draper, 23 N.Y. 318), it could only be after a demand by the plaintiff of the proper city officials that they bring the suit in the name of the city, and a refusal by them to do so, the same as in the case of a stockholder of a corporation, and this would be a necessary allegation of the complaint. The demand and refusal would put such officials and the city in the wrong.
As the complaint states no cause of action, the demurrers by the plaintiff to the answers have to be overruled, for such demurrers reach back to the first fault in pleading, and enable the defendants to question the sufficiency of the complaint. A bad answer is good enough for a bad complaint (Baxter v. McDonnell, 154 N.Y. 432).
The demurrer to the complaint is sustained; the demurrers to the answers are overruled.