When plaintiff brought this action, defendants were maintaining or permitting to be maintained three public markets without any legal warrant or justification whatever, namely, at Queensboro bridge, at One Hundred and Twenty-ninth street and Third avenue bridge, and at Fort Lee ferry. By the time that the motion for a temporary injunction was argued, steps had been taken to legalize two of these markets (those conducted at the bridge sites), the board of aldermen having passed appropriate ordinances to legalize their maintenance, which became effective when the mayor returned them to the board without either approving or disapproving the same. The *728Fort Lee Ferry market was still being maintained, however, without any warrant of law, and the record showed no intention of abandoning the operation of the same, although it appears by affidavits submitted upon the motion to dismiss the present appeal that the commissioner of docks has ordered the borough president to remove from the dock property, on which the market was established, and his action has been approved by the commissioners of the sinking fund. That removal, however, was only to become effective on March first. Thus plaintiff established upon the hearing of his motion the violation of official duty on the part of the defendants Marks and Smith, in that the market at the Fort Lee ferry had been unlawfully established upon dock property; had been there maintained; was still being maintained, and was proposed to be maintained. Laudable as the purposes of the defendant officials may have been in establishing these public markets, and beneficial as the latter may prove themselves to the community, the undisputed fact remains that they were established in violation of law, and that one at least was still being so maintained, with no disclosed intention at that time to discontinue its maintenance Under these conditions, the plaintiff was entitled, as a taxpayer, to maintain this action, and to obtain the relief sought to prevent an illegal official act. (G-en. Mun. Law [Consol. Laws, chap. 24; Laws of 1909, chap. 29], § 51; Code Civ. Proc. § 1925.) I believe the order appealed from should, therefore, be reversed, in so far as it denies the motion for a temporary injunction against defendants Marks and Smith, and that as to them the motion should have been granted, with costs.
Order affirmed, with ten dollars costs and disbursements.