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J. Warren Greene, Respondent, v. Charles H. Knox et al., Appellants.

in the examinations. There is no allegation that the civil service commissioners knew that these reports were false and untrue, or that they in any wise connived at such alleged untrue statements, or that these defendants were in any way involved in the alleged fraudulent transactions. Under these circumstances, we are unable to discover that the plaintiff, as a taxpayer, has pleaded a cause of action as against the demurring defendants. If the appointments were made without authority of law, or if the defendants had been guilty of bad faith amounting to fraud, there would be some reason for holding that a good cause of action was stated in the complaint; but in the absence of facts from which such an inference may be properly drawn, we fail to see what right a taxpayer has to maintain this action. The defendants are holding positions to which they have been appointed under the forms of law; they are holding office under color of right, and the question of the title to the office is the one which is, in fact, involved. The appropriate remedy, and an adequate one, is by information in the nature of quo warranto (Matter of Hart, 159 N. Y. 278, 286, and authority there cited), and the courts have long held to the doctrine that this was the only proper method of trying the title to an office (Johnston v. Garside, 65 Hun, 208, 211, and authorities there cited; People ex rel. Wren v. Goetting, 133 N. Y. 569, 570, and authorities there cited; People ex rel. Nicholl v. N. Y. I. Asylum, 122 N. Y. 190, 197, and authorities there cited; Stuber v. Coler, 164 N. Y. 22, 24; Matter of Brenner, 170 N. Y. 185, 193). The rule is laid down by Mechem in his work on Public Offices and Officers (cited with approval in People ex rel. Lewis v. Brush, 146 N. Y. 60, 63), that "the proceeding by quo warranto is the proper and appropriate remedy for trying and determining the title to a public office, and of ascertaining who is entitled to hold it; of obtaining possession of an office to which one has been legally elected and has become duly qualified to hold, and also of removing an incumbent who has usurped it, or who claims it by an invalid

J. Warren Greene, Respondent, v. Charles H. Knox et al., Appellants.

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election or who illegally continues to hold it after the expiration of his term"; and section 1948 of the Code of Civil Procedure provides that "the attorney-general may maintain an action, upon his own information, or upon complaint of a private person against a person who usurps, intrudes into, or unlawfully holds or exercises within the State, a franchise or a public office, civil or military, or an office in a domestic corporation." If the defendants now before this court have been legally inducted into office they are entitled to receive their compensation, and the facts alleged in the complaint not showing that any waste or injury to the estate, funds or other property of the City of New York is to follow the payment of such salaries, or that their appointments were not without authority of law, the plaintiff in the present action cannot be permitted to try the title by which their positions are held. He has a complete and adequate remedy under the provisions of section 1948 of the Code of Civil Procedure, and the courts ought not, as suggested in Talcott v. City of Buffalo (supra), to be burdened reviewing the discretionary powers of civil service commissioners and other local officials (Keim v. United States, 177 U. S. 290, 296) in actions of this character (see People ex rel. Buckley v. Roosevelt, 19 App. Div. 431; People ex rel. Requa v. Neubrand, 32 App. Div. 49, 51; People ex rel. Faile v. Ferris, 76 N. Y. 326, 328-9; Matter of Hart, 159 N. Y. 278, 285, 286).

The interlocutory judgment appealed from should be reversed with costs, and the demurrers to the complaints should be allowed.

All concur.

NOTE TO SECTION 1925, CODE OF CIVIL PROCEDURE-TAXPAYER'S SUIT WHEN MAINTAINABLE.

The right for a taxpayer to sue public officers is confined to cases "where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud, is charged."

But the statutes do not warrant the conclusion that a taxpayer

J. Warren Greene, Respondent, v. Charles H. Knox et al., Appellants.

is authorized to bring an injunction suit against private persons or corporations upon the theory that a public officer ought to have brought such an action and that upon his failure to do so the taxpayer may step into his place and prosecute the same as plaintiff. Gallagher v. Keating, 29 Civ. Pro. 234.

The act complained of must also be illegal to authorize such action on the part of the taxpayer. People ex rel. Scott v. Pitt, 64 App. Div. 316-323.

Action by a body authorized to act by law may not be attacked collaterally. Bank of Staten Island v. City of New York, 68 App. Div. 231-233.

But the payment of claims not a proper town charge or unauthorized may be enjoined in a taxpayer's suit under this section of the Code of Civil Procedure. Rockefeller v. Taylor, 69 App. Div. 176-179; S. C., 74 N. Y. Supp. 812; see also Talcott v. City of Buffalo, 125 N. Y. 280; Bush v. O'Brien, 164 N. Y. 205.

It is not every act complained of, but only in those cases where they are without authority and illegal, or where corruption, fraud, or bad faith amounting to fraud, exists, that relief can be had under this section. Davenport v. Walker, 57 App. Div. 221-223; Ziegler v. Chapin, 126 N. Y. 342; Bush v. O'Brien, 58 App. Div. 118; Kurtz v. Clausen, 38 Misc. 105.

PARTIES-INSUFFICIENCY OF COMPLAINT.

If the suit is not against official acts or official waste of the funds or property of a municipality a taxpayer's action cannot be maintained; and it is only incidental to a complete determination to join the municipality and others as necessary parties. Wenk v. City of New York, 36 Misc. 496.

In re Judicial Settlement of the Account of William B. Davenport.

IN THE MATTER OF THE JUDICIAL SETTLEMENT OF THE ACCOUNT OF WILLIAM B. DAVENPORT, PUBLIC ADMINISTRATOR OF THE COUNTY OF KINGS, AS ADMINISTRATOR, ETC., OF SARAH L. CULLEN, DECEASED.

COURT OF APPEALS-NOVEMBER, 1902.

§ 2732.

Representation Under the Statute of Distribution-Construction of Section 2732, Code of Civil Procedure, as Amended by Chapter 319, Laws 1898.

September 1, 1898, the Statute of Distribution (Civil Code, sec. 2732, sub. 12) was amended by striking out the clause, “No representation shall be admitted among collaterals, after broth. ers' and sisters' children," and substituting therefor the clause, "Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate." An intestate died thereafter leaving as her nearest relatives nephew, niece, uncles, aunts; first, second and third cousins. Held (Cullen, J., dissenting), that the nephew, niece, uncles and aunts take to the exclusion of the cousins.

Held also (Cullen, J., dissenting), that the persons who take in their own right remain the same under the amendment, but the persons who take by representation are those whose priucipals would have taken real property in intestacy. (Decided November, 1902).

Appeal from an order of the Appellate Division, Second Department, which modified a decree of the Surrogate's Court of the County of Kings, and, as so modified, affirmed the same.

Thomas H. Troy, for appellant.
William T. Carlisle, for respondents.

In re Judicial Settlement of the Account of William B. Davenport.

BARTLETT, J.-This appeal involves the construction of the statute regulating the distribution of personal property (sec. 2732, Code of Civil Procedure, as amended by chap. 319, Laws of 1898). This amendment took effect September 1, 1898.

The intestate died on the 15th day of September, 1898, possessed of personal property only. She left no husband, ancestor, descendant, brother or sister, but was survived by a nephew and niece, Charles Christopher Carroll and Chloe Carroll Rehm, children of a deceased brother; two uncles, two aunts, forty-five first cousins, thirty-three second cousins and one third cousin, making, in all, eighty-one next of kin, the first, second and third cousins being descendants and representatives of deceased uncles and aunts.

This appeal is taken by the special guardian of three second cousins and one third cousin, being infants over the age of fourteen years.

The decree of the Surrogate's Court divided this estate into eighty-one shares and distributed the same to all of said collaterals. The nephew and niece appealed from this decree, insisting that they were entitled to one-half each of the net amount of the personal property to be distributed.

The Appellate Division modified the decree of the surrogate, holding that the nephew and niece and the two uncles and two aunts were next of kin in equal degree, being the third degree, and that the estate should be divided into six equal parts and so distributed. The other collaterals named were excluded.

The special guardian and appellant now claims that the order of the Appellate Division should be reversed and the decree of the surrogate affirmed, while the only respondents on this appeal, the nephew and niece, insist that they alone are entitled to the personal estate of the intestate. The nephew and niece have not appealed from the order of the Appellate Division.

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