Bush v. O'Brien

McLaughlin, J. (dissenting):

I dissent. The supplemental complaint, as it seems to me, does not set up a new cause of action. It simply alleges facts (in addition to those alleged in the .original complaint) to the effect that since the service of the original complaint, the judgments (the payment of which was sought to be enjoined) have, by order of the court, been paid, and since such payment the only relief appropriate to the action is restitution, and this is the judgment demanded instead of an injunction.

It matters not whether a taxpayer’s action be brought to restrain an “ illegal official act,” which in and of itself contemplates a waste of the public funds, or to prevent “waste or injury,” or for “restitution.” The cause of action in each case is the same. The only difference is the relief to be given. This is clear when we consider the purpose of the statute, which is to prevent an illegal use of the public funds. This purpose is indicated in the title to the first act passed, as well as the title to all subsequent acts in relation to the subject. Chapter 161 of the Laws of 1872 is the first statute permitting a taxpayer to maintain an action, and the title to it is, “ An Act for the protection of tax-payers against the frauds, embezzlements and wrongful acts of public officers and agents.” This act was, in part, incorporated into and became section 1925 of the Code of Civil Procedure, which has since been supplemented by chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887, and chapter 301 of the Laws of 1892. The title of chapter 531 of the Laws of 1881 is, “An Act for the protection of tax*124payers,’-’ and this is recognized and continued in the amendments of 1887 and 1892.

The most casual consideration of these statutes will show that the object and purpose sought to be accomplished by them is the protection of taxpayers, by' preventing an illegal use of public money or by restoring to the public treasury money that has been illegally paid. If this is the sole purpose of the statute, then it seems to me to be a mere play upon words to say that an action to restrain any illegal official act” is one cause of action; an action to prevent waste or injury ” is another; and an action for restitution ” is still another. The result to the taxpayer in- each case is the same, viz., the saving of public money which has been, or is about to be, illegally taken or used. The result in each case being the same, I cannot understand, when an action has been brought to restrain an illegal official act (as in this case the payment of illegal judgments), and the judgments have been paid, during the pendency of the action, why appropriate allegations cannot be inserted in a supplemental complaint showing that fact and asking that the. persons who have received the money shall restore the same to the public-treasury. That such relief can be given seems to me to be clearly contemplated by the statute itself. The statute provides : “ In case the waste, or injury complained of consists in any board,'officer or agent in any county, town, village, or municipal corporation, by collusion or otherwise, contracting, auditing, allowing or paying, or conniving at the contracting, audit, allowance or payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses, or.any item or part thereof, against or by such county, town, village or municipal corporation, or by permitting a judgment or judgments to be recovered against such county, town, village or municipal corporation, or against himself in his official capacity, 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 shall enforce the restitution and recovery thereof if heretofore or hereafter paid, collected or retained by the person or party heretofore or hereafter receiving or retaining the same.” (Laws of 1881, chap. 531, as amd. by Laws of 1887, chap. 673, and Laws of 1892, chap. 301.)

*125The case of Latham v. Richards (15 Hun, 129) is directly in point. There an action was brought to restrain the trustees of the village of Saratoga Springs from carrying out a contract for the purchase of certain land and from levying a tax to raise the money therefor. After the commencement of the action a portion of the tax was collected and paid, and the plaintiff thereupon applied for leave to file a supplemental complaint setting forth the fact that such payment had been made and asking that a further levy be enjoined and that the persons who had received the money pay the same back to the village. The motion was denied, and on appeal the order was reversed and the motion granted, the court holding that such facts could be appropriately pleaded in a supplemental complaint.

The statute is a salutary one, and it should be liberally construed to the end that taxpayers may receive the full benefit sought to be accomplished by it. It was determined oti appeal (Bush v. O'Brien, 164 N. Y. 205) that the original complaint stated a cause of action. I do not believe, when the purpose of the statute under which the action is brought is considered; that that cause of action has been destroyed by the payment of the judgments.

For these reasons I am unable to concur in the opinion of Mr. Justice Hatch. I think that the order, in so far as it denied the plaintiff’s motion to bring in certain parties and the service of a supplemental complaint on them, should be reversed and the motion granted, and in other respects the order appealed from should be affirmed.

O’Brien, J., concurred.

Order denying motion to bring in additional defendants affirmed, with ten dollars costs and disbursements, and order allowing service of supplemental complaint and bringing in another party defendant reversed.