Taxpayers' actions.

restrained in a taxpayer's action.

§ 51

Altschul v. Ludwig (1916), 216 N. Y. 459, affg.

170 App. Div. —, 155 N. Y. Supp. 1091. The mere illegality of an official act in and of itself does not justify injunctive relief in the actions authorized to be brought by a taxpayer under this section, but when waste or injury is not involved, it must appear that in addition to being an illegal official act the threatened act is such as to imperil the public interests or calculated to work public injury or produce some public mischief. Altschul v. Ludwig (1916), 216 N. Y. 459, affg. 170 App. Div. -, 155 N. Y. Supp. 1091.

A taxpayer's action is maintainable either to prevent an illegal act against, or waste or injury to, the property of a municipality. Carpenter v. Wise (1915), 92 Misc. 246, 155 N. Y. Supp. 996.

A taxpayer may by action under this section prevent any illegal official act or waste or injury and may compel the restoration of all property and funds. But it is only when the waste or injury is by collusion or otherwise or by default in permitting a wrongful judgment or by retaining or failing to pay over any public funds or property that the court will enforce the restitution and recovery, and also in its discretion declare the official responsible, financially, therefor. Daly v. Haight (1915), 170 App. Div. 469, 156 N. Y. Supp. 538.

Where the complaint in a taxpayer's action alleges that the defendant municipality, the owner of a valuable water power, has a cause of action against the other defendant, the owner of the water power next below that of the city, who as alleged is about to construct a dam below that of the city to a height which will cause the water to set back upon the city's land thereby considerably reducing it power, and that the governing body of the municipality had consented that the other defendant might take and appropriate to his own use without compensation the city's water power and wrongfully neglects and refuses to commence an action against him to restrain the construction of said dam, the allegations of the complaint show an illegal act—an act contrary to constitutional provisions and the charter of the municipality, and states a cause of action under this section of the General Municipal Law. Said action is maintainable against both defendants, the plaintiff in that respect under this section taking the place of the municipality as against the other defendant and then joining the municipality as a proper party. Carpenter v. Wise (1915), 92 Misc. 246, 155 N. Y. Supp. 996.

Where the superintendent of buildings in the city of New York has refused to revoke a permit theretofore given by him or to interfere with the work of construction being carried on under the permit, a taxpayer's action under this section of the General Municipal Law is not the proper remedy. That statute was designed to give a remedy under conditions where none had been available before, not to reach conditions and correct evils where the existing law gave an effective remedy. Southern Leasing Co. v. Ludwig (1916), 217 N. Y. 100, revg. 168 App. Div. 233, 153 N. Y. Supp. 545.

The Terminal Station Commission of the City of Buffalo, acting under chapter 842 of the Laws of 1911, entered into a contract with the Delaware, Lackawanna and Western Railroad and the New York, Lackawanna and Western Railroad Company, the purpose of which was to effectuate and carry out plans for a railroad terminal in said city theretofore adopted by the commission so as to eliminate grade crossings and afford better terminal facilities. Suit by a taxpayer to declare the contract illegal, null and void, as in violation of the State and Federal Constitutions, of chapter 842 of the Laws of 1911, and as contrary to public policy. Provisions of the contract and of the act of 1911 examined, and held, that a judgment dismissing the complaint should be affirmed. McCutcheon v. Terminal Station Commission (1915), 168 App. Div. 301, 154 N. Y. Supp. 711.

Action against town officers to compel repayment of moneys expended; town and payees not necessary parties; pleading; misappropriation of moneys sufficiently al

§§ 86-b, 90.

Withdrawing percentages under contracts.

L. 1916, ch. 176. leged. In an action brought by a taxpayer against a town supervisor and the superintendent of highways to compel them to restore moneys to the town, the town itself is not a necessary party. It seems, however, that the town may voluntarily come in and make itself a party. Neither need the persons to whom the illegal payments are alleged to have been made be necessarily joined as defendants, for the action is not to cancel a contract or to annul their personal rights. An allegation that the moneys were misapplied and illegally paid with knowledge that it was without warrant of law is sufficient, and it need not be averred in the words of the Code that the misappropriations were "waste or injury to" the funds of the town, for that would be a mere conclusion of law. Hicks v. Cocks (1915), 167 App. Div. 862, 153 N. Y. Supp. 776.

An action may be brought by a taxpayer to set aside audits made by the board of supervisors and to recover on behalf of the county moneys alleged to have been allowed to a supervisor for services in preparing the tax rolls of the town, where certain items for which payment had been made were not properly chargeable to the county under section 23 of the County Law. Smith v. Hedges (1915), 169 App. Div. 115, 154 N. Y. Supp. 867.

Where in a taxpayer's action against a supervisor and a person employed pursuant to a resolution of the town board to recover town moneys paid by the former to the latter for services rendered the court finds that there was no intentional wrongdoing by either the defendants; that all the moneys were paid before the commencement of the action, and that the supervisor did not receive any of them, it was error to give judgment for the plaintiff. Daly v. Haight (1915), 170 App. Div. 469, 156 N. Y. Supp. 538.

The legal capacity of a plaintiff to maintain such an action is not affected by the mere fact that he is a tenant in common of the lands assessed on which he has paid the taxes, and that they are listed on the assessment rolls in the name of the estate of plaintiff's ancestor. Smith v. Hedges (1915), 169 App. Div. 115, 154 N. Y. Supp. 867.

§ 86-b. Retained percentages may be withdrawn.-A clause may be inserted in any contract hereafter made or awarded by any municipal corporation, or any public department or official thereof, providing that the contractor may, from time to time, withdraw the whole or any portion of the amount retained from payments to the contractor pursuant to the terms of the contract, upon depositing with the comptroller or disbursing officer of the municipality, corporate stock or bonds of the municipality of a market value equal to the amount so withdrawn. The said clause may. further provide that the municipality shall, from time to time, collect all interest or income on the stock or bonds so deposited, and shall pay the same, when and as collected, to the contractor who deposited the stock or bonds. The said clause may further provide that if the deposit be in the form of coupon bonds, the coupons as they respectively become due shall be delivered to the contractor. The said clause may further provide that the contractor shall not be entitled to interest or coupons or income on any of the deposited stock or bonds, the proceeds of which shall be used or applied by the municipality, pursuant to the terms of the contract. (Added by L. 1916, ch. 176, in effect Apr. 10, 1916.)

§ 90. Workmen's compensation insurance on public works. Each contract to which a municipality, or any public department or official thereof,

L. 1916, ch. 504.

Boards of child welfare.

§§ 146, 150, 152.

is a party and which is of such a character that the employees engaged thereon are required to be insured by the provisions of chapter forty-one of the laws of nineteen hundred and fourteen, known as the workmen's compensation law, and acts amendatory thereto, shall contain a stipulation that the same shall be void and of no effect unless the person or corporation making or performing the same shall secure compensation for the benefit of, and keep insured during the life of said contract, such employees, in compliance with the provisions of said law. (Added by L. 1916, ch. 478, in effect May 9, 1916.)

§ 146. Devises and bequests restricted.

Validity of trust for purpose of public library and parks. Durkee v. Smith (1916), 171 App. Div. 72, 156 N. Y. Supp. 920.

$150. Appointment of boards in cities.-The board of child welfare of a city wholly including one or more counties shall consist of nine members. The members of the board shall be appointed by the mayor for such terms that the term of one member of the board shall expire each year thereafter. Upon the expiration of the term of office of a member of the board, his successor shall be appointed by the mayor for a full term of nine years. If a vacancy occur, otherwise than by expiration of term in the office of a member of the board, it shall be filled for the unexpired term. At least three members of the board shall be women. The members of such a board heretofore appointed by the mayor are continued in office until the expiration of their terms, respectively. The additional appointive member of such board shall be appointed by the mayor, within ten days after this section as amended takes effect, for a full term of nine years. (Added by L. 1915, ch. 228, and amended by L. 1916, ch. 504, in effect May 10, 1916.)

§ 152. General powers and duties of board.-Subd. 4 amended by L. 1916, ch. 504, in effect May 10, 1916, as follows:

4. Establish rules and regulations for the conduct of its business, which shall provide for the careful investigation of all applicants for allowances and the adequate supervision of all persons receiving allowances; such investigations and supervisions to be made by the board and without incurring any unnecessary expense. Reports must be filed at least quarterly by the agents, visitors or representatives of the board, with respect to the families receiving allowances granted by the board. (Section added by L. 1915, ch. 228, and subd. amended by L. 1916, ch. 504, in effect May

10, 1916.) ́

GUARDIANS.

See also Surrogate's Courts.

Code of Civil Procedure.

§ 477-a. Appointment of guardians ad litem and special guardians by supreme court without application. The supreme court may appoint a

Code Civ. Pro. § 477a

Appointment of guardians ad litem.

L. 1916, ch. 440. guardian ad litem or special guardian for an infant or an incompetent person, at any stage in any action or proceeding, when it appears to the court necessary for the proper protection of the rights and interest of such infant or incompetent person and fix the fees and compensation of such guardians, except when it is otherwise expressly provided by law. (Added by L. 1916, ch. 440, in effect Sept. 1, 1916.)

HEALTH OFFICER.

See Quarantine.

L. 1916, ch. 217. Division engineers; district and co. superintendents. §§ 3, 17, 33.

HIGHWAY LAW.

(L. 1909, ch. 30.)

§ 3. Classification of highways.-Subd. 4 amended by L. 1916, ch. 578, in effect May 17, 1916, as follows:

4. Town highways are those constructed, improved or maintained by the town with the aid of the state, under the provisions of this chapter, including all highways in towns, outside of incorporated villages constituting separate road districts, which do not belong to either of the three preceding classes.

§ 15.

General powers and duties of commissioner of highways.

The supervisory powers of the state commissioner of highways involve wide discretion as to the construction and maintenance of the highway system of the state, and the exercise of this discretion necessarily affects the manner in which the funds to be raised by the state, counties and towns relating to such construction and maintenance shall be collected and disbursed. People ex rel. Carlisle v. Board of Supervisors (1916), 217 N. Y. 424, affg. 164 App. Div. 922.

§ 17. Duties of division engineers.-Subd. 9 added by L. 1916, ch. 217, in effect Apr. 15, 1916, as follows:

9. When the corners of the boundaries of counties, cities, villages and subdivision lots of towns shall have been located, as provided in subdivision nine of section thirty-three of this chapter, it shall be the duty of the division engineer to accurately set a monument at such corner, except in cases where the improvement of such highway or road has been completed prior to the location of such corner as provided in such subdivision. Such monument shall be of some durable material and shall be so set that the top thereof shall be on a level with the surface of such improved highway or road. The cost and expense of such monuments and the setting of the

same shall be a state charge.

§ 33. General powers and duties of district or county superintendents.— Subd. 9 renumbered subd. 10 and new subd. 9 added by L. 1916, ch. 217, in effect Apr. 15, 1916, as follows:

9.

Accurately ascertain and locate the corners of the established boundaries of counties, towns, cities and villages and, where townships were originally subdivided into lots to accurately ascertain and establish such lot corners if any such corners will be located within the bounds of the improved part of any state or county highway or county road.

In either case

If the district or county superintendent shall not be a civil engineer he may hire a competent civil engineer to locate such corners. he may employ such other assistants as may be necessary, the cost and expense thereof to be a county charge.