It is quite clear that this action is not authorized by section 1925 of the Code of Civil Procedure, for it is manifest that the approval of the plans of the building to be erected upon private premises will not in any manner effect a waste of public funds.- ¡Neither property nor funds of the municipality are involved in or can be affected by the alleged illegal official act. It is claimed, however, that the action can be maintained under section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29). That section does not, as I construe it, authorize a taxpayer’s action to restrain any threatened illegal official act regardless of whether or not the official act, if consummated, will affect property or funds of the municipal corporation. In terms it authorizes an action to enjoin “ any illegal official act,” but this provision is modified by the subsequent provisions of the same sentence, which prescribe who may bring the action, and for what purpose it may be brought. If it were intended to authorize the action to enjoin a/ny threatened, illegal official act, it is not probable that the Legislature would have con-' fined the remedy to taxpayers liable for taxes on property of the assessed- value of $1,000, but would have extended the remedy to any resident citizen. The provisions of the section material to the question now under consideration are as follows:
“All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted, and an action 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 and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or *609-corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment of the above-named amount within one year previous to the commencement of any such action.”
The majority opinion gives no force or effect to the last part of the sentence which, I think, clearly shows that the right of action is given to a taxpayer whose interest as a taxpayer will or may be affected by the alleged illegal official act. By the express terms of the statute the remedy is given to the taxpayer “ to prevent the waste or injury” of the property of the municipality in which as a taxpayer he is interested. I am of opinion that, as under said section 1925 of the Code of Civil Procedure an" action may only be maintained for waste of municipal funds, so under said section 51 of the General Municipal Law, in so far as it relates to illegal official acts, an action may only be maintained to enjoin an illegal official act which will or may result in an unauthorized use or illegal payment of funds of the municipality, or in an injury to or a waste of its property or funds. Questions under section 51 of the General Municipal Law and the statute of which it is a re-enactment have usually arisen with respect to a threatened illegal application of municipal funds, and the courts have not deemed it necessary to consider the question which is now presented for decision. It is to be borne in mind that originally courts of equity had no jurisdiction over such matters and authority' for the action must be found in the statutory provisions which, of course, being' remedial statutes are to be construed liberally to. accomplish the purpose intended by the Legislature. (Osterhoudt v. Rigney, 98 N. Y. 222; Queens County Water Co. v. Monroe, 83 App. Div. 105.)
If this action can be maintained then the administration of the municipal law, instead of being left in the first instance to the officials clothed with authority to act, may be taken over by the courts at the instance of any taxpayer. It will only be necessary to allege, in addition to the property qualifications giving a taxpayer a standing, that an application has been made to some municipal body, *610board or officer for some illegal permit, act or action and that the body, board or officer threatens to act favorably thereon, and then the threatened action will be enjoined until the court passes upon the legality thereof. A threat to issue a peddler’s license, or a license to keep a dog or to carry a revolver, or a license for a parade, or a 'threat to discharge a subordinate officer or employee without authority, or to do other innumerable things that could in no manner affect property or funds of the corporation might give rise to a taxpayer’s suit if the statute is to be construed literally without giving effect to the provision showing the purpose for which the action is authorized. Public officials would thus be unduly interfered with in the performance of their duties and courts would be unduly burdened with litigation. No harm can come to the property or funds of the municipal corporation by the threatened action of the superintendent of buildings with respect to approving the plans in question. If he should approve the plans and if that would be illegal then his act would be a nullity, and it would not authorize the erection or alteration of the building in accordance with the plans, and. such erection or alteration may be enjoined at the instance of an abutting property owner, or of the owner of property in the neighborhood, whose property rights will or may be affected by the illegal structure. Moreover, doubtless a writ of mandamus would issue to some official whose duty it is to prevent the erection of illegal structures or to prevent and abate nuisances to compel him to perform his duty in case he should fail to perform it. There is, however, I think, on the facts presented, no ground for a taxpayer’s action. If funds were to be disbursed, or property were to be purchased or disposed of illegally, doubtless it might, be presumed on the illegality of the threatened action that the municipal funds or property would be injuriously affected; but the act here threatened, if conceded to be illegal, gives rise to no such presumption. Therefore, in my opinion, the court properly denied the application for a temporary injunction, and vacated the injunction issued restraining the defendant from approving the plan pending the determination of the motion for a temporary injunction.
. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.