Shoemaker v. Buffalo Steam Roller Co.

Robson, J.: Section 51 of the General Municipal Law gives to the taxpayer possessing the qualifications specified therein two distinct causes of actioti: “The one to prevent an illegal official act on the part of an officer, which does not depend upon whether such illegal act would cause an injury to the municipal corporation or not; the other to prevent waste or injury to, or to restore and make good any property, funds or estate of such municipal corporation.” (Bush v. Coler, 60 App. Div. 56, 60; affd., 170 N. Y. 587; Bush v. O’Brien, 164 id. 205, 215.) Plaintiff in this action has sought to avail himself of both of the remedies afforded by the statute.- First. He asks that the agreement between the defendant Buffalo Steam Roller Company and the defendant town of Campbell be declared illegal and void, because, as he alleges, it was made without any power or authority on the part of the town officials who assumed to make the contract for the town and to act for it in that behalf, to enter into such a contract. The future illegal acts of the town officials which he asks to have enjoined are the payments upon the contract, which under its terms would become due thereafter. Second. He demands that the defendants, who as town officials, have allowed, audited and paid to the defendant Buffalo Steam Roller Company, and also the latter defendant, be required to restore and make good to the defendant town the amounts paid upon the contract and pursuant to its provisions, being the sum of $640 for each of the years 1910 and 1911, which payments, as he alleges, were illegal and unlawful, whereby “ the funds of said town have been and were wasted to that amount.” The contract in question is, in effect, identical with that recently considered by this court in Gardner v. Town of Cameron (155 App. Div. 750). For the reasons stated in disposing of that case we think the trial court properly held that the contract now presented was illegal and void. The second cause of action was also properly disposed of by the learned trial court. Its purpose being to compel restoration [840] of town funds, alleged to have been wasted, by making payments therefrom upon an illegal contract, it was necessary, not only to allege the waste of the funds, but to prove as a fact upon the trial the waste alleged. (Bush v. Coler, supra.) In that case the court considered the sufficiency of a taxpayer’s complaint as a statement of a cause of action under the provisions of chapter 301 of the Laws of 1892, which was re-enacted as section 51, above referred to. In the course of the opinion it is said: “The complaint here alleges that the entry of judgment was unauthorized, as the offer upon which it was entered was without the consent of the comptroller, but as that judgment has been paid in pursuance of legal proceedings to enforce it, the only remedy that the court could grant would be to compel a restitution if the facts alleged were sufficient to show that there had been waste or injury to the funds or property of the city, and there was no waste unless it appeared that the city was not justly indebted in the amount of the judgment; for, as was said in Bush v. O'Brien (supra), if the city was justly indebted in the amount stated in the judgment, there could be no waste.” For the same reason in the case now before us it was necessary for plaintiff to show that the town funds which he alleges were wasted were disbursed in payment of claims which had no substantial basis of benefit to the town for their support to the extent of the payments made thereon. But the court has found upon evidence amply sustaining the findings exactly the contrary state of facts. It is found that, while the contract was in form a lease of the steam roller by the roller company to the town, yet it was in fact a conditional contract for the sale and purchase of the machine, and the contract was made by the parties thereto in good faith. It was further found that the contract was designed and intended by the parties thereto to be a lease of the steam roller at the rate mentioned in the contract, which rate after investigation by the town officials and deliberation thereon they had concluded was, as it was in fact, a reasonable charge for the rental thereof when in actual use; that it was suited to the needs of the town in the improvement and repair of its highways; that it was in fact used by the town in such repair and improvement of highways in each of the years in question [841] the full number of days, for which payment was made at the agreed rate; that such use made by the town was beneficial to it and its taxpayers; that the use of the roller effected a considerable saving to the town as compared with the expense of similar repairs and improvements of its highways in the preceding year; that during the years it was used and payments made therefor the town was actually benefited by the use thereof to the amount paid for such use, and that during these years the town sublet the roller to other persons and received various sums for the use thereof. From these facts it clearly appears that these expenditures of the funds of the town were for town purposes, were reasonable in amount and beneficial to the town in the legitimate and necessary performance of its function in caring for its highways. Upon these facts it must be held that plaintiff failed to establish a cause of action for funds wasted by the town officials. The infirmity of the contract, which, as has been held, renders it illegal and void, is that it is in fact not a lease of the roller, but a contract for its conditional sale. As a contract of purchase it violates the requirements of the Highway Law prescribing the conditions and manner by which alone such a machine may be purchased by a town. But the same officials who made the contract in question had the authority to lease a roller for the use of the town in the repair and improvement of its highways. (Highway Law [Consol. Laws, chap. 25; Laws of 1909, chap. 30], §§ 49, 50.) The town has had the beneficial use of the roller, furnished by the roller company under a contract with the town, which it is true was illegal as made; but having enjoyed the benefit of its use, and the statute expressly authorizing a contract in behalf of the town for such use as was made of it, we think the town was liable upon a quantum meruit therefor, and that no recovery of the moneys paid in behalf of the town to the steam roller company should he had in this action. (Kramrath v. City of Albany, 127 N. Y. 575; Moore v. Mayor, 73 id. 238.) The appeal of defendant Buffalo Steam Roller Company from that part of the judgment above quoted, designated as I, was not urged by its counsel on the argument. Plaintiff having succeeded in establishing a material and [842] controverted cause of action against the defendant Buffalo Steam Boiler Company, the award of costs in his favor and •against the company was proper. The judgment should be affirmed, without costs of this appeal to any party thereto. All concurred. Judgment affirmed, without costs.