French v. McGoldrick

Action by a taxpayer to enjoin the commissioners of the board of water supply from entering into certain specified contracts, on the ground that the wage schedules affecting them, filed by the comptroller of the city of New York, are void, and to enjoin the comptroller from certifying these specified contracts, for the reason that wage schedules are not in conformity with subdivision 3 of section 220 of the Labor Law, are illegal, and constitute waste. Order granting plaintiff’s motion for an injunction pendente lite and denying defendants’ cross-motion to dismiss the complaint, reversed on the law and the facts, with ten dollars costs and disbursements, motion for injunction pendente lite denied, with ten dollars costs, and motion to dismiss the complaint granted, with ten dollars costs. The complaint does not state a cause of action. (Ziegler v. Chapin, 126 N. Y. 342, 348; 7 Carmody N. Y. Practice, p. 269, § 220.) The complaint is insufficient on either the theory of fraud or illegality. The plaintiff in effect concedes that it is insufficient on the theory of fraud. The facts in the affidavits, if put in appropriate form in the complaint, would not establish illegality. Moreover, it may be that under section 51 of the General Municipal Law such an action cannot be maintained by a taxpayer against the commissioners of the board of water supply of the city of New York, in view of the activities of that board in various parts of the State, including the supplying of water to certain communities outside the city of New York. (Schiejfelin v. Komfort, 212 N. Y. 520; Halleran v. City of New York, 132 Mise. 73; affd., 226 App. Div. 785.) Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.