Kittinger v. Buffalo Traction Co.

Hardin, P. J.: Plaintiff as a taxpayer seeks to maintain the action and by means thereof to prevent waste of the property of the city of Buffalo. In Adamson v. Nassau Electric R. R. Co. (89 Hun, 261) it was held “ A city has no power to alienate or appropriate the city streets and has no property rights therein,, and the provision of the statute authorizing an action to prevent a waste of "the estate and other property of a municipality refers to property- owned by the city and within its power of disposition.” In that case it was held that the legislation which authorizes a taxpayer to maintain an action to prevent waste was not intended to enable á taxpayer to maintain an action “ against the members of the common council in a city, and the administrative officers thereof, for the purpose of restraining officials acting within the limits and scope of their powers and discretion; ” and reference was made in the opinion to Ziegler v. Chapin (126 N. Y. 342) where it was said: “We have quite recently declined to become arbitrators between taxpayers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved.” In Potter v. Collis (19 App. Div. 392) it was held, viz.: “ The power of the Legislature, unless restricted by the Constitution, is absolute over the property held by a municipal corporation for public use, and it may grant to a railroad company the use of its streets.” And it was further held that, in an action authorized to be brought by a taxpayer, “it must appear that the act complained of, or which the taxpayer seeks to restrain, is an illegal official act, or the action must be one to prevent waste or injury to, or to make good, property, funds or estate of the municipal corporation.” And it was further held in that case, viz.: “ The fact that an applicant to a city commissioner of public works for a permit to. excavate streets and avenues in order to change the motive power of a railroad, also [334] needs a permit from the board of electrical control, does not make illegal the act of the city commissioner of public works in granting the permit.” In that case the taxpayer’s, application for an injunction was denied, and the right of a taxpayer to maintain the action upon the facts of that case was denied. In Kellinger v. Forty-second Street, etc., R. R. Co. (50 N. Y. 209), Churoh, Ch. J., in referring to the decision, of People v. Kerr (27 id. 188), says that it was held “that legislative authority to construct a railroad on the surface of the streets without a change-of grade was a legitimate exercise of the power of regulating public rights for public uses, and that the city was not entitled to compensation-, because it had as a corporation no property which was ■appropriated.” We are of the.opinion that the complaint fails to state facts sufficient to warrant a taxpayer. to maintain the action for the relief .sought- in the complaint in this action. We must, therefore,, reverse the interlocutory judgment and sustain the demurrer to the •complaint. All concurred, except Ward, J., dissenting.