George Crane Morehouse.

The supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe online

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Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 83 of 96)
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joined in such action or proceeding, and their liabilities as such en-
forced by the proper judgment or direction of the court; but any
recovery under the provisions of this act shall be for the benefit of
and shall be paid to the officer entitled by law to hold and disburse
the public moneys of such county, town, village or municipal cor-
poration and shall, to the amount thereof, be credited the defend-
ant in determining his liability in the action by the county, town,
village, municipal corporation or public officer.

The provisions of this act shall apply as well to those cases in
vrhich the body, board, officer, agent, commissioner or other person
above named, has not, as to those in which it or he has jurisdiction
over the subject-matter of its action.

Laws of 1881, chap. 531, as amended by Laws of 1887, chap. 678.


Under the provision of the act of 1877 (chap. 268, Laws of 1877) in reference
to the sale of lands for unpaid taxes in the county of Queens, as amended in
1878 (chap. 226, Laws of 1878), where the county treasurer strikes off lands to a
town as directed by said act, in case there are no bids for the pame, his fees be-
come simply matter of account, " a charge against said town," to be audited by
the town board the same as other claims against the town (chap. 305, Laws of
1840; chap. 490, Laws of 1874). Said ofiBcer has no right, without audit or di-
rection, to deduct his fees from funds in his hands belonging to the town.

Where it appeared that said county treasurer had been in the habit of paying
liimself the fees allowed by law upon such sale out of the trust funds of the town
in his possession, without previous audit ; that upon a sale he had struck off a
large number of lots to a town and that said officer claimed the right thus to
satisfy his claim. Held, that an action was maintainable under the act of 1881
(chap. 531, Laws of 1881), by a tax payer of the town to restrain such illegal ac-

Warrin v. Baldwin, 105 N. Y. 534.

In this action, brought by the plaintifE as a tax payer, under chapter 531 of the
Laws of 1881, to prevent the payment of $3,000 of the bonds of the town of
Mentz, issued pursuant to an adjudication of the county judge of Cayuga county,
in proceedings taken before him, and held by the defendant Cook, and to require
Cook to deliver them up to be canceled, it was charged and proved that the bonds
were illegally issued for the reason that the petition failed to state that the peti-
tioners were a majority of the tax payers who were taxed or assessed for prop-
erty, " not including those taxed for dogs or highway tax only," upon the last
preceding assessment-roll. Held, that this omission In the petition was jurisdic-
tional, and had the effect to render the proceedings and the bonds issued pursuant
to it, invalid.

Strang v. Cook, 47 Hun, 46.

That the right to bring an action for the relief sought in this action was given
to tax payers by the statute, and the rules prescribing the circumstances under
which an action, dependent only upon the general equity power of the court to
grant the relief, could be brought, and the reasons which ordinarily require the

Action by ok Against a Supeevisok. 749-

court to deny the plaintiffs right to bring such an action, were not applicable to
this action. That the action was not barred by the statute of limitations, although
it was commenced more than ten years after bonds were issued and transferred by
the commissioners of the town. That the action was analogous in principle to
one instituted for the removal of a cloud upon the title to land, which is a con-
tinuing cause of action that may be asserted at any time during the existence of
the cloud, and is never barred by the statute of limitations while the cloud con-
tinues to exist.


Plaintiff, an incorporated seminary of learning, leased its school building and
premises, at Saratoga Springs, to D. for a boarding-house during a summer vacation.
The assessors of the town assessed the property to D., and after the expiration of
the lease, a tax was levied thereon. The receiver of taxes for the town was pro-
ceeding to sell under the act of 1880 (Laws of 1880, chap. 68), which authorized
him to sell any real estate upon which taxes are unpaid. Whereupon plaintiff
brought this action to restrain the sale, and to vacate and set aside the tax as un-
authorized by said act. On the trial it was claimed by the defendant that the assess-
ment was void by reason of the indefiniteness of the description. The property
was definitely described in the notice of sale. Meld, that as, by the act, the re-
ceiver is directed to execute a conveyance to the purchaser, which is made (§ 8)
presumptive evidence of regularity of all the proceedings including the assess-
ment, a grantee under a sale would not be required to show a regular assess-
ment in order to recover the premises, and his deed would be a cloud on the title;.
and that the action was maintainable.

Temple Grove Seminary v. Cramer, 98 N. T. 121-2.

An action to vacate an audit, by a town board of audit, of a claim which the board
had no authority to allow, or where the audit was fraudulent and collusive, and
to restrain the collection of tax therefor, may properly be brought by a tax payer
under the act of 1873 (Laws of 1873, chap. 161), '• forthe protection of tax payers."

The right to maintain an action under said act is not confined to cases where,
before its passage, an equitable action could have been brought by the town for
the same relief.

Osterhoudt v. Rigney et al., 98 N. Y. 222.

In an action brought under the act " for the protection of tax payers" (Laws of
1873, chap. 161, amended by Laws of 1879, chap. 536), by tax payers of a town to
vacate, on the ground of illegality or fraud, audits of town accounts made by
the board of audit, and to restrain the levying of a tax for their payments, th&
persons in whose favor the audits were made are proper and necessary parties.
The enumeration in said act of the persons against whom actions under it may be
brought does not dispense with the necessity of joining all other persons who will
be directly affected by the judgment, and are necessary parties to a complete de-
termination of the controversy.

Osterhoudt «i a^. v. Board of Supervisors, etc., et al., 98 N. Y. 239.

In an action by a tax payer of the town of A. to have certain bonds issued by
said town adjudged illegal and void, it appeared that the town, acting in supposed
accordance with statutory provisions (Laws of 1869, chap. 907, as amended by
Laws of 1871, chap. 935), issued its bonds to pay for stock of a railroad corporation,
which passed into the hands of innocent holders. The bonds were claimed by the
town to have been illegally issued, and so invalid. While suits were pending to
enforce them, said town, under the act of 1880 (Laws of 1880, chap. 146), author-
izing it " to issue new bonds pursuant to the provisions of Laws of 1878, chap. 75,
and its amendments, to the amount and extent of its bonded indebtedness, issued
the bonds in question in exchange for, and to retire the outstanding bonds, the
new bonds drawing a lower rate of interest than the old ones. Said town at the
time had no other "bonded indebtedness" than the original bonds issued as above
stated Held, that the action was not maintainable; that the town, having elected
to compromise rather than to contest the validity of the old bonds, was estopped.
from thereafter questioning it.

Hills V. Peekskill Savings Bank etal., 101 N. T. 490.

750 SuPEKVisoEs' Manual.

Where the bonds of a town have been issued to «, railroad corporation in pay-
ment for stock, by commissioners appointed under and by a judgment void for
-want of jurisdiction rendered in proceedings under the act authorizing " munici-
pal corporations to aid in the construction of railroads," an equitable action is
maintainable for the protection of tax payers, at the suit of a tax payer of the
town, to restrain the negotiation, or payment, of the bonds and to compel their

Metzger v. Attica & A. R. R., 79 N. Y. 171. See Ayers v. Lawrence, 59 id. 192.

An action will lie to restrain the contemplated and threatened issue of bonds
by railroad commissioners not authorized by law,

Ayers v. Lawrence, 59 N. T. 192.

The legislative intent in the passage of this act was to provide ample remedy
and protection to the tax payers against all wrongful acts, to their prejudice, of
the officers and agents of a municipal corporation, aflFecting not only its property
Tights but its credits, and embraces within its purview every process or means by
which the corporation can be charged pecuniarily, or the taxable property within
its limits burdened.


An action was sustained by a tax payer to vacate a lease of a wharf, which had
been illegally made.

Btarin t. Mayor, etc., of New York, 42 Hun, 549.

And the fact that the plaintifif was a bidder at the sale and was interested in
-the use of the wharf and ferry franchise previous to the time at which the sale
was had, did not disqualify him from so doing.


The Revised Statutes declare in terms "judgments recovered against a town
fihall be a town charge." The judgments recovered by Piatt, by virtue of that
provision of the statute, are declared to be a town charge, and being a town
charge, they fall within the provisions constituting the machinery for the collec-
tion of town charges, to- wit: Assessment and levy upon the taxable property
within the territory of the township. Seld, that the statute of 1881, known as
an act for the protection of tax payers (Laws of 1881, chap. 531), does not apply
to the case in hand. It was passed to prevent fraudulent recoveries of judgments
by default or by collusion, not for the purpose of giving every tax payer within
the limits of the town the right to litigate afresh questions fairly, fully and hon-
■estly presented by way of defense and solemnly adjudicated adversely to the
town; that notwithstanding the act of 1881, the judgments recovered by Piatt,
the creditor, against the town of Orleans, are conclusive upon the town of Or-
leans, and It is the duty of the board of supervisors of Jefferson county to apply
the provisions of the law relating to the collection of judgments, and to place
upon the schedule of the town a sum sufficient to pay and liquidate the judg-
ments so recovered by Piatt, the creditor.

Lee V. Board of Supervisors of Jefferson Co., 62 How. 202.

A tax payer, wishing to shield himself from an illegal assessment, has two

1st. If he moves seasonably, he has the right to review the action of the asses-
sors by certiorari.

2d. To bring an action in equity to have the roll adjudged illegal and void.
In such an action the court has full power to inquire, dehors the record, as to the
validity of the claim or claims for which the tax is assessed,

Sherman v. Trustees, 27 Hun, 890-2.

If the action is brought for the benefit of an individual, it will not be sustained.

Hull V. Ely, 2 Abb N. C. 440.
One showing no other right than as a tax payer cannot maintain an action in

Action by ok Against a Stjpeevisoe. 751

equity against the official custodian of the proceeds of a tax to restrain their ap-
plication to the purposes for which the tax was raised.
Kilburn v. St. John, 59 N. Y. 21.

Held, that a tax payer of a town could not maintain an action against the rail-
road commissioners of the town to restrain them from paying out moneys In their
hands, paid to them by the collector, by direction of his warrant, to pay interest
on bonds claimed to have been issued on behalf of the town, to aid in construct-
ing a railroad, but which were alleged to have been illegally issued and void.

In an action under chapter 181, Laws of 1872, against the board of supervisors
and the town auditors to set aside certain audits, the persons in whose favor the
audits were made are necessary parties.

Osterhoudt etal. v. Board of Supervisors of Ulster Co., 98 N. Y. 239.

In an action brought by a resident. and tax payer of a municipal corporation
against the comptroller of such corporation, under the act for the protection of
tax payers (Laws of 1881, chap. 537), the. plaintiff must, upon the commence-
ment of such action, give a bond as in such act specified.

Tappen v. Crissey, 64 How. 496.

Such bond must be in the form prescribed by the act, and must be under seal.

A compliance with sections 620, 621, of the Code of Civil Procedure, as to se-
curity, does not obviate the necessity of complying with the provisions of this


If the court intervene to enj oiu an officer in what he claims to be his official
duty, a plain case should be established by the party asking such interference.
It is not sufficient for the plaintiflf in such an action to show that the act he seeks
to enjoin is one of doubtful propriety.


Where, on a motion to dissolve an injunction, which had been granted restrain-
ing the defendant, who is the comptroller of the city of Troy, from countersign-
ing any draft or drafts which might be drawn for the purpose of paying the
police force of the city of Troy, of which John McKenna was the superintend-
ent, and from countersigning any draft or drafts which might be drawn for the
purpose of paying the police force of said city, or any part thereof, signed by
Police Commissioner Cavanaugh and Police Commissioner Hannan, until the
further order of the court, the plaintiff, in support of the injunction, presented
a case showing a doubtful question as to which of the two bodies of men claim-
ing to be the police force of the city of Troy is the legal one. neld, that such
doubt is not sufficient to justify the court in declaring, by its order maintaining
the injunction, that the defendant was about to do an illegal official act, and waste
or injure the property, funds or estate of the municipal corporation of which he
is an officer.


The mere fact that persons filling, for the time being, the office of village trus-
tees are about to act, in levying an assessment, without having first taken the
oath of office, will not, in the absence of proof that funds or property will be in-
jured thereby, entitle tax payers to an injunction restraining such persons from
levying the assessment. Such persons, being officers de fctcto, are capable of
levying an assessment.

Dowa V. Village of Irvington, 13 Abb. N. 0. 162.

Irregularities in a municipal election, which will not change the result, will not
be rectified by the courts of judicature. When an election is irregular, certiorari

752 SuPEKvisoRs' Manual.

is the proper remedy. Omissions and defects in assessment-rolls cannot be in<
quired into collaterally.


Property which a municipality has acquired for one purpose — in this case the
construction of a sewer beneath it — may be used by it also for an additional pur-
pose not impairing the other, such as allowing the surface to be used as a public
school playground ; and a tax payer's action does not lie to enjoin such additional

Winkler v. Summers, 22 Abb. N. C. 80.

Although a mere error in judgment as to price on a proposed purchase by a
municipality may not suffice to sustain a tax payer's action, yet an excessive val-
uation so large as to indicate that the officers acting are not exercising the same
fidelity, care and caution as would be expected of an individual purchasing tor
himself with his own money, will sustain an action to enjoin the purchaser.


Under the present statute the amount wrongfully expended in such a purchase
may be recovered back in a tax payer's action.


Where the comptroller, on being authorized to purchase land at an expense not
exceeding a specified limit, merely asked the owner what he would take, and the
owner demanding the sum so fixed as a maximum limit, held, that accepting the
offer without effort to bring down the price to a more reasonable figure, was
conduct against which relief should be given by injunction at suit of a tax payer.


Neither oral acceptance of an ofier under such a resolution, nor the delivery to
the law officer of the corporation of a deed for examination, amount to an execu-
tion of the contract such as to preclude an injunction.


The language of the act in specifying the causes for which an action is given
is broad and comprehensive and is not used in a technical or restrictive sense. An
action is authorized against any person acting for or in behalf of a municipality
by whose acts the corporation or its tax payers may be injured in its property
rights or pecuniary interests " to prevent waste or injury to any property, funds,
or estate, of such county, town or municipal corporation." Waste has a technical
meaning when it is used to denote spoliation or destruction to lands or other cor-
poreal hereditaments by a tenant to the prejudice of the reversioner or remainder-
man ; but it is not unfrequently used in a different and more comprehensive sense
and may be applied to any squandering or misapplicatioQ of property or fund by
trustees or others charged with a duty, or any abuse of trust or duty by v^hich
property is lost, or an estate or trust fund diminished in value. A deoaka/iM by
an executor or administrator is defined to be wasting of the assets, and may con-
sist of any act or omission, every mismanagement by which the estate suffers
loss (3 Wms. on Exrs. 1629). The term " waste " as used in the act, includes
every wrongful act of mismanagement of the property rights or interests of
the municipality causing the loss or damage. The word "injury" includes
every wrong, every thing that is not done rightfully. Under this term
every act in violation of right is included. (3 Bl. Com. 3.) And within the
terms of the act every pecuniary interest and right which could be wasted, that
is, destroyed, mismanaged, misappropriated or misapplied, or that could be in-
jured by the unauthorized or wrongful act of public servants or agents to the dam
age or loss of the corporation or the tax payers, is included. The prevention of
waste or injury " to any property, funds or estate" of such county, etc., is the
declared purpose of the act. Those words, upon a fair and reasonable interpre-
tation, embrace not only property and funds in possession but the credit and the
power of taxation and of borrowing money in anticipation of taxation and every
process and means by which the municipal corporation can be charged pecuni-
arily or the taxable property within its limits burdened. Municipal corporations


seldom have property, funds or estates in possession to be wasted or injured save
the taxes collected or in process of collection for the purposes to which they are

Ayers et al. v. Lawrence etal., 59 N. Y. 198.

The terms are inapplicable in their most usual and ordinary sense to the prop-
erty rights and pecuniary interests of a municipal corporation. The legislature
have used several words for the sole purposr of embracing every right and inter-
est which might need protection; and in the protection and right use and applica-
tion of which the tax payers would have an interest. The word " property " de-
notes the interest one may have in lands and chattels to the exclusion'of others.
"Funds" may mean cash on hand, stock, etc., and when "public funds" are
referred to, taxes, customs, etc., appropriated by the government to the discharge
of its obligations, are understood. It is a name also given to the public funded
debt of the government, and in the latter sense a municipal obligation and public
debt, created by or in the name of the local or municipal government, may be
regarded as technically within the term "funds" of the corporate body. The
word "estate" has several meanings, and in its most extreme sense signifies
every thing of which riches or fortune may consist. (Whart. Law Diet.; Bouv.
Law Diet.; Ketchum v. (My of Buffalo, A Kein. 356.) The terms used, in the
connection in which they stand, cannot, without an utter disregard of the rights
that were intended to be preserved and protected, be held to mean any thing less
than every interest and right affecting the burdens, the pecuniary interests, the
credit, or the obligations of the municipality, and it would be a perversion of the
act to give the language a restricted interpretation, which would place beyond
its protection the power of creating a public debt. The taxing power may be so
exercised as to result in a waste or injury of the "property, funds and estate"
of a municipal corporation, and the issuing of bonds of the municipality is but
an exercise of the taxing power. The power of taxation and the pledge of the
public credit as one form of the exercise of that power, is the use and application
of the property, funds and estate of the municipality ; and when the power to do
either is exercised in violation of right, it is a waste and injury of the public
property, funds and estate within the terms of the act.


The complaint in this action, brought by the plaintiffs, as tax payers, under
chapter 531 of 1881, stated that a former board of excise of the city of Auburn
recovered a judgment of about $2,000 against the defendants Burtis for selling
liquors without a license ; that the said defendants were pecuniarily responsible
and the judgment collectible, and that amount thereof, when collected, was to be
paid to the treasurer of the city of Auburn for the support of the poor of that
city, thereby lessening the amount of taxes to be paid for the support of the
poor ; that the judgment was aflirmed by the general term and was then before the
court of appeals on an appeal thereto taken by the defendants Burtis ; that the
defendants, excise commissioners, were taking steps, without notice to the plain-
tiffs attorney, to substitute another attorney, not on account of any want of skill,
or of his conduct of the suit, but to enable them to cancel and discharge the said
judgment upon the payment by the judgment debtor of a sum much less than its
value for the purpose of favoring such debtors at the expense of the tax payers
of the city whom they oflScially represented, and because they were opposed to
the enforcement of the excise law ; that the said defendants, the said Burtis,
were engaged with the other defendants in such plans and attempts to compro-
mise the judgment, for nominal sum, to benefit and favor themselves.

Standart v. Burtis, 46 Hun, 82.

Sdd, that a judgment overruling a demurrer interposed to the complaint, upon
the ground that it failed to state a cause of action, should be affirmed.

That although the courts will not restrain officials from exercising discretionary
powers in good faith, yet when they threaten an abuse of that discretion, they
may be enjoined. That as the complaint alleged that the defendants, Burtis, were
acting with the commissioners in these illegal and unlawful proceedings, and
were planning and attempting to settle and discharge the judgment without its
payment, they were properly made parties defendant.

That they were also properly made parties defendant for the reason that they


754 Supervisors' Manual.

■were directly interested in the proposed action of their co-defendants and were
entitled to be heard on the trial before a decree was made.

Upon the facts alleged in the complaint the relief sought was a perpetual in-
junction restraining the defendant from settling, satisfying or discharging the
judgment before it was paid in full, and from substituting any attorney in place
of the plaintiff's attorney in that action.

Held, that the complaint stated but one cause of action.



§ 904. Application for Investigation, Etc.—

If twenty-five freeholders in any town or incorporated village in
this State shall present to any justice of the supreme court having
jurisdiction therein, an aflBdavit subscribed and sworn to by them-
selves, setting forth that they are' freeholders and have paid taxes
on real estate within one year and that they have cause to believe
that the moneys of such town or incorporated village are being un-
lawfully or corruptly expended, it shall be the duty of such justice,
upon ten days' notice to the supervisor or supervisors, where there
are more than one, and the particular disbursing officer, if any, of
such town, making the expenditure, or the trustees and treasurer of
such incorporated village, to make summary investigation into the

Online LibraryGeorge Crane MorehouseThe supervisors' manual : a practical treatise on the law applicable to the duties of supervisors from the date of their election to the end of their official term; also, the law relative to town bonds, railroad aid bonds, defective roads and bridges, town meetings, assessment and collection of taxe → online text (page 83 of 96)