Southern Leasing Co. v. . Ludwig , 217 N.Y. 100 ( 1916 )

This is a taxpayer's action under section 51 of the General Municipal Law (Cons. Laws, ch. 24). The Mecca Realty Company is the lessee of a building in the city of New York. In February, 1914, it filed a plan for the erection on the roof of a sign 141 feet high. The plan was approved by the superintendent of buildings and a permit granted. Before anything was done under this permit, the board of aldermen, in May, 1914, adopted an ordinance limiting the height of signs on the roofs of buildings to 75 feet. The Mecca Realty Company afterwards and in December, 1914, leased the roof to the O.J. Gude Company, which has commenced the erection of the sign in accordance with the plans. The superintendent of buildings has refused to revoke his permit or to interfere with the work of construction. The plaintiff alleges that the sign, if built, will be dangerous to life and limb. This action is brought to compel the superintendent of buildings to revoke his permit, and to enjoin him from permitting the work to proceed.

The first question is whether a taxpayer's action is the appropriate remedy. The statute says that an action may be maintained against officers of a municipal corporation to "prevent any illegal official act" (General Municipal Law, section 51). Is this action one to prevent an illegal official act within the meaning of that statute? The superintendent of buildings has already issued the permit. He issued it long before the adoption of the ordinance. If the effect of the ordinance is to nullify the permit, no other revocation is necessary. This was conceded by the Appellate Division. A majority of that court thought, however, that the taxpayer might enjoin the superintendent of buildings from inaction as well as action. He was not commanded to abate the nuisance, but he was restrained from not abating it. The distinction between these two remedies is verbal only. In effect, therefore, it has been held that an action in equity may be maintained by a taxpayer, not merely to restrain a public officer from acting, but to compel him to act. The remedy in equity has thus been made a substitute for the legal remedy by mandamus. Whether an illegal "act" in the sense in which that word is used in the General Municipal Law may under some conditions be an act of omission as well as one of commission, we are not required at this time to decide. It is enough to say that mere inaction will not justify the intervention of a court of equity where the legal remedy by mandamus is available and adequate. The equitable remedy of an injunction under the General Municipal Law is to be granted or withheld in accordance with the general principles which govern the exercise of equitable jurisdiction (People v. CanalBoard, 55 N.Y. 390, 394; Schieffelin v. Komfort, 212 N.Y. 520,535). This was clearly recognized by Judge SEABURY writing for the court in Altschul v. Ludwig (216 N.Y. 459), the most recent case in which the subject has been considered. A fundamental principle governing the exercise of equitable jurisdiction is, however, that equity will not act where the remedy at law is adequate; and the remedy at law is adequate where a full measure of relief is available through mandamus (High on Injunctions, section 28; N.Y. G.L.R. Co. v.Township of Montclair, 47 N.J. Eq. 591; Coquard v. IndianGrave Drainage District, 69 Fed. Rep. 867; People v. EquityG.L. Co., 141 N.Y. 232, 237; Matter of Debs, 158 U.S. 564,591). In Altschul v. Ludwig (supra) the illegal permit had not yet been granted. We held in effect that the taxpayer was not called upon to wait until the threatened nuisance had been created and then by some other remedy compel its abatement. There was a positive act to be prevented; mandamus was not available; the wrong, though threatened, had not yet been done, and it never would be done if a court of equity would stay it. In that situation equitable jurisdiction ought not to be declined until a threatened has ripened into a consummated wrong. Even in such circumstances the menace must be imminent and substantial. It must be in a real sense a menace to the public welfare. Not every apprehension of injury will move a court of equity to the exercise under this statute of its discretionary powers (Thomas v. Musical Mutual Protective Union, 121 N.Y. 45, 52, 57). But a situation altogether different from that in the Altschul case is now before us. The public officer whose conduct is assailed has not threatened to act. He has threatened to refuse to act. The permit has already been granted; the sign is in course of construction; and, if the superintendent of buildings wrongfully refuses to remove it, the remedy of mandamus is available to any citizen to hold him to the performance of his duty (People exrel. Pumpyansky v. Keating, 168 N.Y. 390; People ex rel.Cross Co. v. Ahearn, 124 App. Div. 840, 845).

We are persuaded that a taxpayer's suit in equity cannot be extended to such conditions without a perversion of the purpose of the statute. To extend it to this case would be to confer upon courts of equity a power to supervise and correct the conduct of public officers coextensive with the supervisory and corrective jurisdiction that has been heretofore exercised by courts of law. If a highway commissioner, for illustration, permits a highway to be obstructed or to fall into decay, he may be compelled by mandamus to abate the nuisance. But unless special circumstances make the remedy of mandamus inadequate, he will not be enjoined by a court of equity at the instance of a taxpayer from refusing to abate it. The statute was designed to redress a substantial grievance. It was designed to give a taxpayer a remedy under conditions where none had been available before. It was not designed to reach conditions and correct evils where the existing law gave an effective remedy at the instance of any citizen.

The conclusion to which we are thus led makes the consideration of other questions needless.

The order should be reversed, with costs; the first and second questions should be answered in the negative; and it is unnecessary to answer the third question.

WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and SEABURY, JJ., concur.

Order reversed, etc.