If, in eliminating the grade .crossing at Niagara street, it was necessary to close Dearborn street, I think the grade crossing commissioners had power to contract with the defendant bridge company, as was done, for closing that street, and that the city is justified in permitting the same to remain *35closed. But the evidence seems to show, and the trial judge finds, that the closing of Dearborn street was not a necessary part of the grade crossing work in Niagara street. Assuming, as I think we should, that it was necessary to raise the tracks eight inches at Dearborn street, that did not make it necessary to close the street as has been done.
It is contended, however, that the validating statute (Laws of 1911, chap. 358, § 15), which ratifies and confirms the official acts of the grade crossing commissioners in making contracts with any railroad company to carry out the plans of the commissioners, has the effect to ratify the contract for closing Dearborn street. I agree with the learned counsel for the bridge company that his company is within the general provision of the act. It seems to me, however, that the exception therein contained, which provides that the section shall not affect any action or proceeding pending in any court, takes this action out of the effect of that provision. The summons was served before the act was passed, although the undertaking necessary in a taxpayer’s action was not given until afterward. That was not done until an order was made at Special Term permitting that to be done nunc pro tunc, and allowing plaintiffs to amend their complaint. That order, as well as the judgment itself, is challenged upon this appeal, the contention being that there was a new cause of action substituted for that set forth in the original complaint. I think the change was in procedure, or form of the action, rather than in substance. The purpose of the action, and the relief sought, is the same in the amended complaint as in the original complaint. Furthermore, I am of the opinion that a strict taxpayer’s action was not necessary, and that the giving of the undertaking and the allegations respecting the same may be regarded as mere surplusage.
If Dearborn street was not lawfully closed at this point, it was the duty of the city to prevent obstructing the street, and to take action to open it after it had been closed, but the city contends that it was lawfully closed, and refuses to open the same. In such a case, when the city itself refused to protect the rights of the public to the use of the street, the plaintiffs had the right to bring the action and make the city a party *36under the rule that where a trustee refuses to perform his duties the cestui que trust may bring the action to enforce the obligation enjoined upon the trustee. (Overton v. Village of Olean, 37 Hun, 47.) Whether the question is to be determined by the original complaint or by the amended complaint, or by the mere service of the summons alone, I .think the cause of action was saved by the exception.
I may add that if the plaintiffs are not entitled to the relief awarded by the judgment, I do not see how they can maintain the action at all so far as anything is disclosed by this record, and the complaint might as well be dismissed here.
Robson, J., concurred.
Judgment reversed and new trial granted, with costs to appellants to abide event.