Kilbourne v. Allyn

Daniels, J.

This action appears to have heen brought by the plaintiff, on the ground that the commissioners of the town were unauthorized under the'statute to issue the bonds, because the consent of the tax-payers contained the name of no railroad company in whose stock the proceeds of the bonds should be invested by them. And the further ground that the bonds themselves were transferred directly to the railroad company, formed after the consent was obtained, instead of their proceeds, as the statute in terms required. It was in the consideration of these objections, and of the rights of Iona fide holders of bonds issued under such circumstances, that the learned referee wrote his able and interesting opinion, through which he reached the conclusion that the plaintiff was entitled to judgment for the relief mentioned in his complaint.

The defendant excepted to the conclusions and directions of the referee by which he held that the injunction, restraining the application of the moneys collected from the payment of the interest accruing on the bonds of the town, should be made perpetual, and that judgment should be entered for that purpose, and for the distribution of such moneys by the treasurer of the county among the tax-payers of the town and their representatives in proportion to the amounts collected of them respectively. These exceptions are probably sufficient to present the point of the plaintiff’s ability to maintain this action. For if he has shown no right to that' relief, the judgment recovered by him should'not have been ordered in his favor. His .right, in that respect, must, therefore, be considered before the grounds on which the referee has placed the recovery can properly form the subject of examination.

Although he professedly brought the action for the benefit of himself and the other tax-payers of his town, no others appear to have joined him in the undertaking. And they probably could not have lawfully done so, since the interests of each one of the tax-payers in the money forming the subject of the controversy were distinct, personal, and peculiar to himself. (Magee v. Cutler, 43 Barb., 239, 260.) For both reasons the case must be considered and examined as the personal action of the plaintiff himself, affecting his rights solely, so far as they might be injured or prejudiced by the future action of the commissioners. This view is further fortified by the form which the plaintiff gave to his complaint. For while he alleged that a multitude" of suits would be required to recover back the money if the commissioners were permitted to pay the interest upon the bonds with it, and the questions made were of common interest to all the tax-payers of the town, he did not show that there was the least danger of any such suits, or that any tax-payer beyond himself threatened or contemplated commencing any suit. So far as anything in the complaint, or by the evidence given on the trial of the action, was made to appear, it showed nothing from which the inference could be drawn that any other taxpayer of the town in the least degree dissented from the payment of the money for the extinguishment of the interest arising upon the town bonds. For that reason, even if such an action could be properly instituted to avoid a multitude of individual suits, the fact itself forms no part of the plaintiff’s case. In order to maintain an action in equity for an injunction on that ground, it certainly should be made to appear by the pleadings and the proofs that other persons either threatened or designed to institute such suits. (Magee v. Cutler, supra; Heywood v. City of Buffalo, 14 N. Y., 534.)

As long as it was neither alleged nor shown that other taxpayers were dissatisfied with the payment of the interest upon the town bonds, the judgment providing for their reimbursement can in no view of the case be sustained. They applied for no such relief as was given them by the referee’s direction, that the taxes collected from them to pay the interest on the bonds should be returned to them or their representatives, and conferred no authority upon the plain-, tiff to make such an application in their behalf.'

The plaintiff alleged in his complaint that the defendants were good and responsible for several times the amount of the moneys remaining in their hands. And as that was the case, there was no foundation on which the action could be maintained for an injunction to prevent irreparable injury to his rights. The proportion of the tax paid by him under the warrant issued to the collector, applicable to the interest accruing on the bonds received by the commissioner, was thirty-four dollars and ninety-nine cents. And that could not well be endangered, even if an injunction was not issued for its protection, as long as the persons who- had received it and were expected to make an unlawful use of it were responsible, as the plaintiff averred that they were.

In fact, no injury was shown, either hy the complaint or the evidence, which could possibly happen to the plaintiff or his property by the action it was apprehended the commissioners were about taking in the appropriation of the moneys one of their number had received, beyond the payment of the small sum claimed by him, toward the satisfaction of the interest maturing on the bonds. And that was clearly insufficient to constitute a ground pf action for an injunction restraining such payment. ; For if they were not legally protected in such an appropriation of the money, they were abundantly able to answer for all its pecuniary consequences. “ A party who brings an equitable action must maintain it upon some equitable ground; and if his cause of action is of a legal and not an equitable nature, he must bring a legal action or pursue a legal remedy. Where a matter is clearly ajprima facie one of legal cognizance, a party must, in order to maintain an equitable action upon it, state clearly facts sufficient to entitle him to equitable relief, and to show that a perfect remedy cannot be obtained at law.” (Heywood v. City of Buffalo, 14 N. Y., 534, 540, 541.) That, the plaintiff in this case failed to do by anything either alleged or proved.

The fact that he was a tax-payer of the town, and that a tax had been collected from him without the authority of law, and there was danger that the amount would be devoted to an unlawful purpose, were not sufficient to enable him to maintain an action for an injunction. They failed to present a case within the rule just quoted, and similar circumstances have often been held to form no equitable cause of action. (Magee v. Cutler, supra; Doolittle v. Supervisors of Broome County, 18 N. Y., 155; Susquehanna Bk. v. Same, 25 id., 312; Mutual Benefit Life Ins. Co. v. Supervisors of New York, 32 How., 359; Hasbrouck v. Kingston Board of Health, 3 Keyes, 480; and Ayres v. Lawrence and others, 63 Barb., 454.)

If the plaintiff is right in maintaining that the bonds were issued without authority, and no debt has been created by them against the town in which he is a tax-payer, then the persons through whose agency his property may be seized and appropriated for their payment, or the payment of the interest accruing upon them, will be involved by that act in the commission of a wrong, and possibly, for that reason, legally liable for its value. (Mygatt v. Washburn, 15 N. Y., 316; Bennett v. City of Buffalo, 17 id., 383.)

So also he may maintain an action for money had and received against the functionary, without right, receiving and appropriating the proceeds of property unlawfully taken from him, and converted into money for the purpose of making such payment with it. (Chapman v. City of Brooklyn, 40 N. Y., 372; Newman v. Supervisors of Livingston, 45 id., 676; Bank of Commonwealth v. Mayor of New York, 43 id., 184.)

And without waiting until his property has been seized, for the collection of what he may deem an unfounded demand, he may secure a review of the proceedings proposed to be taken for its appropriation by means of the writ of certiorari. (People v. Com'rs, &c., 23 N. Y., 192; People v. Board of Assessors of Albany, 40 id., 154.)

If the plaintiff has a valid right to resist the payment of taxes imposed for the purpose of satisfying the debt mentioned in the bonds, the law affords him ample means for its protection, and for redress after its invasion, without the aid of either a temporary or perpetual injunction. The case stated and proved by him did not entitle him to redress by means of that remedy. For that reason the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Danfo'bth, J., dissents.

Judgment reversed.