Standart v. Burtis , 15 N.Y. St. Rep. 145 ( 1887 )

Lewis, J.:

It appears that the city of Auburn was the owner of a judgment against the appellants of the value of about $2,000; that the commissioners were about to cancel and discharge it 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 taxpayers of the city, whom they officially represented, and because they were opposed to the enforcement of the excise law. All the questions which were raised by the defendants upon the trial of the action against them for selling liquor without a license have been decided against them' by the Court of Appeals. {Comr’s of Excise v. Burtis, 103 N. Y., 136.) So that it appears that the judgment was the property of the city of Auburn, and was of the value of $2,000; that the defendants were about to waste and destroy nearly its entire value. Section 1 of chapter 531 of the Laws of 1881 provides that “ all officers, agents, commissioners and other persons acting for and on behalf of any county, town, village or municipal corporation in this State, and each and every one of them, may be prosecuted and an action or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners, or other persons, or to prevent waste or injury to any property, funds or estate of such county, town, village or municipal corporation, by any person whose assessment, or by any number of persons jointly, the sum of whose assessments shall amount to one thousand dollars,” etc. It is under this act that this action is sought to be-entertained. It seems to cover the case, and authorizes the action to restrain the commissioners from wasting the property of the city.

Courts will not restrain officials from exercising discretionary powers in good faith •; when, however, they threaten an abuse of that discretion, they may be enjoined. (Hartwell v. Armstrong, 19 Barb., 166.)

It is charged in the complaint that defendants are about to commit an act in gross violation of law and of their duties as such officers, and in violation of their duties to the taxpayers of the city of Auburn, in order to shield the appellants, the Burtises from the just consequences of their violation of law. In such case it is proper to enjoin. (The People ex rel. Negus v. Dwyer, 90 N. Y., 410.)

Only the defendants Burtis appea-; and it is claimed that the action will not he against them, as they are not acting or attempting to act officially nor in behalf of the city.

The complaint alleges that they are acting with the commissioners in these illegal and unlawful proceedings; and they are planning and attempting to settle and discharge the judgment without its payment. If the court have power to enjoin the commissioners from consummating the illegal and improper acts mentioned in the complaint, it is competent and proper to enjoin the appellants from doing anything which may tend to accomplish these improper acts. The appellants are interested that the defendant commissioners should, not be enjoined. They are directly intreested in the proposed action of their có-defendants, and are entitled to be heard on the trial before a decree is made. Hence it is proper to unite them as defendants.

Any person may be made a defendant who has or claims an interest in tire controversy 'adverse to the plaintiff, or who is a necessary party defendant for a complete determination or settlement of the question involved. (Code of Civ. Pro., § 447.) All persons materially interested in the subject of a suit ought to be made parties. All persons who have any substantial legal or bene-, ficial interest in tire subject-matter, and who are to be materially affected by the decree,, must be made parties. (Barb, on Parties [2d ed.], 326.) A defendant may in some cases be a proper party, although not a necessary party. (Barb, on Parties [2d ed.], 482; Williams and Others v. Bankhead, 19 Wall. [U. S. Sup. Court], 563, 564.)

There is but one cause of action stated in the complaint. The relief sought is a perpetual injunction restraining the defendants from settling, satisfying or discharging the judgment before it is paid in full; and from substituting any attorney in place of the plaintiffs’ attorney in that action. One of the contemplated acts of the commissioners complained of is an attempt to substitute another attorney in the place of their attorney, in order to consummate their designs. These allegations do not constitute two causes of action. The relief demanded in this complaint seems to be contemplated by the act of 1881; but if the complaint prays for relief not warranted by the alleged facts, a demurrer for that reason will not lie. (Lord v. Vreeland, 13 Abb. Pr., 195; Moak’s Pleadings, 279, 756, and cases there referred to.)

There does not seem to be any merit in this appeal, and the judgment and order appealed from should be affirmed, with costs.

SMITH, P. J., Baekeb and Beadlet, JJ"., concurred.

Judgment and order affirmed.