I dissent and vote to affirm the dismissal of the complaint.
This is a taxpayer’s action grounded on section 51 of the General Municipal Law. Such an action must be supported by *315allegations of corruption, fraud or illegality and, in addition, waste or public injury. (Kaskel v. Impellitteri, 306 N. Y. 73; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202; Altschul v. Ludwig, 216 N. Y. 459.) In determining the sufficiency of the complaint conclusory allegations as to arbitrary, wrongful and illegal acts unsupported by factual allegations must be disregarded. (Kalmanash v. Smith, 291 N. Y. 142; Lifshutz v. Adams, 285 N. Y. 180; Gerdes v. Reynolds Investing Co., 281 N. Y. 180; Knowles v. City of New York, 176 N. Y. 430.)
The complaint alleges Automatic Voting Machine Division of Rockwell Manufacturing Company since 1898 has manufactured voting machines widely used throughout the United States; that many of said machines are used in the State of New York and that the company has recently developed a new voting machine which has been approved by the Secretary of State of the State of New York pursuant to section 242 of the Election Law.
Shoup Voting Machine Corporation also manufactures voting machines. The Shoup machine has vertical arrangements of ballots and front reading counter arrangement, features which differentiate it from all other voting machines.
On June 8, 1961 the Board of Elections of the City of New York submitted to the City Planning Commission a budget request seeking the purchase of 5,500 new multiple voting machines. On November 1,1961 the City Planning Commission adopted the proposed 1962 capital budget providing for the acquisition of voting machines; said budget was duly adopted by the City Council and certified by the Mayor, the Comptroller and the City Clerk as the capital budget for the calendar year 1962.
On March 7,1962 the Board of Elections adopted a resolution requiring the purchase of Shoup voting machines. On July 2, 1962 the Board of Elections submitted its requisition to the Department of Purchase for 2,750 voting machines which on the same day forwarded it to the Board of Estimate. On July 6, 1962 the Board of Estimate adopted resolutions appropriating the necessary funds for the purchase of the Shoup voting machines without public letting.
Section 242 of the Election Law vests in the Board of Elections the power to adopt for use at any general election any kind of voting machine approved by the Secretary of State. Section 95 of the Election Law requires the purchase of voting machines to be made through the Department of Purchase of the City of New York. Section 343 of the New York City Charter requires the purchase of equipment involving the expenditure of more than $2,500 to be based on public letting ‘ ‘ except that in a special *316case the board of estimate by three-fourths vote may order otherwise
It was within the power of the Board of Elections to adopt the Shoup voting machine. The complaint does not show that the Shoup voting machine has not been approved by the Secretary of State. The complaint alleges that the vertical and front reading arrangements differentiate the Shoup voting machine from all other voting machines. Consequently, the designation by name is of no material significance. There are no factual allegations to the effect that the specifications for vertical and front reading arrangements are incompatible with the efficient operation of the voting machines. The allegation that Automatic has stated it is prepared to offer a lower price if it is enabled to bid is of no legal effect since it is alleged that the Shoup and Automatic machines are different.
Giving effect to the allegations of fact and the inferences therefrom favorable to the plaintiff, it would appear that the acts of the defendants complained of were within their competence and power and that it is the sole purpose of this action to test the advisability or wisdom of the act of the Board of Elections in adopting the Shoup voting machine. This is not the office of an action under section 51 of the General Municipal Law although it may be the basis for an appropriate proceeding under article 78 of the Civil Practice Act. (Kaskel v. Impellitteri, 306 N. Y. 73, 79, supra.) Further, the adoption of the Shoup voting machine by the Board of Elections enabled by section 242 rendered futile public letting and hence established ‘ ‘ a special case ’ ’ justifying the Board of Estimate to “ order otherwise” as provided in section 343 of the New York City Charter.