Latham v. Richards

Learned, P. J.: This action was brought to declare certain acts of the defendants void, and to restrain them from doing certain other acts in completion and furtherance of - the acts already done. When the' • case was before this court on a former appeal, it ivas held that a temporary injunction pendente lite ought to be granted. It now appears, by the affidavits on the part of the plaintiff, that after the commencement of the action, but before this court had-decided that an injunction pendente lite ought to be granted, the defendants, or some of them, proceeded to do, and did, certain of the acts which this action was brought to restrain, and which would have been restrained, if the injunction had been granted when the action was commenced. These acts are in completion and furtherance of those which had been done before the action-was commenced, and which were the ground of its commencement. The plaintiffs now ask leave to file a supplemental complaint', setting forth the acts done since the commencement of the action, and asking not only the original relief, but also-such relief-as will redress the alleged injury done since the action was commenced. The motion was refused by the ■ Special Term, and the plaintiffs appeal. Aside from anything that may be considered peculiar in this action, this leave to file a supplemental complaint would seem to be almost-a matter of course in the sound discretion of the court. (2 Barb. Ch. Pr., 67.) If the original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the complainant to other or more extensive relief, he may file a supplemental bill. (Candler v. Pettit, 1 Paige, 168; New Code, § 544; Old Code, § 177; Hasbrouck v. Shuster, 4 Barb., 285; Sage v. Mosher, 17 How. Pr., 367, 370.) Such being the general rule, as well of the new as of the old practice, the opposition to the motion in this case must rest on the peculiarity , of the action and of the amendment.' The action is brought by two .tax-payers, who sue as well for themselves as for other tax-payers. It is authorized by chapter 161 of the laws of 1872: The-complaint alleges that the trustees of the village of’Saratoga Springs made a contract to purchase, a [132] certain farm for certain purposes; that a deed was executed therefor; that a large part of the consideration was the payment of mortgages, and that the trustees are proceeding to lay a tax to pay for said land. The complaint avers, for reasons therein stated, that the purchase was void and illegal, and seeks to restrain the levy of the tax. The supplemental complaint alleges that since ■the commencement of the action this tax has been levied, and part of the amount levied has been paid to some of the defendants on the purchase- by the trustees; and it asks not only to restrain any further levy and to declare the purchase illegal, but .also to have a restitution made by the defendants who have received the money, to the village of Saratoga Springs. The defendants now insist that the statute, above cited, authorizes only actions to restrain improper payments; and that, after such payments shall have been made, no action can be maintained by a tax-payer to compel payment of the money to the municipal corporation. I do not think that, on a motion for leave to file a supplemental complaint, the court should be called upon to examine, with care, the question whether the new facts constitute a cause of action. .The defendants suggest that the plaintiff may bring a new action. But certainly there is no reason why this should bo done, when the new facts grow out of the original transaction and arc a continuation of it. It is not desirable that the court should, in this collateral matter, pass on the right of action. As a general rule, the plaintiffs should be allowed to set up new facts which are really a part of the original matter. The defendants urge that no action is known to the. law brought by a party, with no title to a fund, to compel one defendant to pay such fund to another. This statement may be true, if limited to parties who have no interest, beneficial or otherwise, in a fund. But it seems to be too broad, if it is to have a wider meaning. When officers of a corporation have fraudulently or illegally transferred property, an action has been maintained by a stockholder, making the corporation defendant, to recover for the corporation the property wrongfully transferred. This is for the obvious reason that if the officers have transferred property wrongfully, they will not probably .seek to recover it back. (Gray v. Chaplin, 2 Sim. & Stu., 267; [133] Gray v. N. Y & Virg. Steamship Co., 10 S. C. N. Y., 383, and cases there cited.) The general doctrine is recognized in Davenport v. Dows (18 Wall., 626). These cases differ from that which the plaintiffs ask to present, in this respect, that this corporation is municipal. Previously to the act of 1872, it had been held that a municipal corporation, in the management of its property, exercised a public function. For that reason a tax-payer could not bring an action to restrain or redress a wrongful application of property. (Roosevelt v. Draper, 23 N. Y., 318.) That- act was passed “to' remedy the felt defect in the law and give the tax-payer a concurrent action with the corporation for the prevention or correction of the wrongs mentioned in the act.” (Ayers v. Lawrence, 59 N. Y., 192 at 196.) And it cannot be doubted that in an action to restrain the officers of the village, the other parties to the alleged illegal contract might, and probably should, be joined. Now, this act has taken away the very basis of the decision in Roosevelt v. Draper, and has permitted municipal officers to be sued by a tax-payer in such cases. The act does not say that only actions for injunction may be maintained. The previous decisions had no reference to the kind of action which might be brought. They were decisions as to the incompetency of a party, as taxpayer, to sue. This statute is “ for the protection of tax-payers.”. The words, “ actions to prevent waste or injury,” should not have a narrow meaning. “We have no right to give a hypercritical interpretation to a benign act designed for the protection of the tax-payer,.in favor of the wrong-doer.” (Ayer v. Lawrence, ut supra.) At least we ought not to say that it is so clear that a tax-payer may not have a judgment in such a suit compelling the wrong-doer to refund, that we will not permit him to set up the necessary allegation by a supplemental complaint. The order should be reversed, with $10 costs and printing, and the plaintiff’s motion should be granted. Present — Learned, P. J., Boardman and Tappan, JJ. Order reversed, with $10 costs and printing, and leave to serve supplemental complaint granted.