Altschul v. Ludwig
| Decision Date | 04 January 1916 |
| Citation | 216 N.Y. 459,111 N.E. 216 |
| Parties | ALTSCHUL v. LUDWIG, Superintendent of Buildings of Borough of Manhattan, et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Abraham H. Altschul against Alfred Ludwig, as Superintendent of Buildings of the Borough of Manhattan, and others. From an order of the Appellate Division (155 N. Y. Supp. 1091), reversing an order denying a motion for an injunction pendente lite to restrain the superintendent of buildings from approving plans for the alteration of a theater, defendants appeal on certified questions. Order affirmed, and questions answered.
Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and William J. Millard, both of New York City, of counsel), for appellant superintendent of buildings.
Bruce Ellison, of New York City (Emanuel Blumenstiel and Saul J. Baron, both of New York City, of counsel), for appellant Ellison.
Isidor Cohn, of New York City, for appellant Golden.
Strong & Mellen, of New York City (Charles H. Strong, of New York City, of counsel), for respondent.
The plaintiff, a taxpayer, brings this action against the superintendent of buildings of the borough of Manhattan, city of New York, for an injunction restraining him from approving certain plans and issuing a permit for the alteration and reconstruction of a building known as the Dewey Theater in East Fourteenth street, in the borough of Manhattan. The owner and tenant of this property are parties to this action. The building in question is a three-story non-fireproof building, at present occupied as a theater. As reconstructed, the building is designed to have a seating capacity of 1,184. The proposed reconstruction was held by the superintendent of buildings to be so general as to constitute the construction of a new theater, to which the requirements of article 25 of the Building Code were applicable. It is not necessary to specify in detail the respects in which the superintendent of buildings and the court below held the proposed construction to be contrary to the requirements of this article of the Building Code. It is sufficient to point out that the respects in which it was found deficient related to the nonfireproof construction of certain portions of it, to the absence of proper side courts and of sufficient space behind the last row of seats in the orchestra and balcony floors, the failure of the side aisles to comply with the Building Code, and the fact that it is proposed to occupy, in conjunction with the proposed theater, a nonfireproof building, having inadequate exit facilities. It was upon these grounds and others that the superintendent of buildings withheld his approval of the proposed plans. An appeal was taken from the decision of the superintendent of buildings to the board of examiners, which overruled the action of the superintendent of buildings in disapproving the said plans and approved the plans subject to compliance with certain specified conditions. The superintendent of buildings being notified of the action of the board of examiners, announced his intention of approving the proposed plans as modified by the board of examiners. It was under these circumstances that the plaintiff applied to the Special Term for an injunction. This application was denied, but upon appeal to the Appellate Division the order of the Special Term was reversed and the motion for an injunction granted. The Appellate Division wrote no opinion, but granted the motion on the authority of Brill v. Miller, 140 App. Div. 602,125 N. Y. Supp. 865.
Whether the facts set forth in the affidavits submitted justified the granting of the injunction by the Appellate Division is not now before us for review. Our review is limited to a determination of the questions certified to us by the Appellate Division. These questions are as follows:
‘1. Can an action be maintained by a taxpayer to restrain the superintendent of buildings from approving plans for the erection or remodeling of a theater in the city of New York, on the ground that the plans do not comply with the Building Law?
These questions assume that the building plans for the erection or remodeling of the theater in question do not comply with the Building Code of the city of New York. It does not appear that the act sought to be restrained would, if performed, result in waste or injury to the funds or estate of the municipality. If the action can be maintained, it must be because the act that is threatened is an illegal official act, and because of the nature of the act itself. Under our law as it stands at present a taxpayer's action can only be brought for the causes specified in section 1925 of the Code of Civil Procedure and section 51 of the General Municipal Law. Under section 1925 of the Code of Civil Procedure a taxpayer may maintain an action ‘preventing waste of or injury to, the estate, funds, or other property’ of a public corporation.
Under section 51 of the General Municipal Law (Cons. Laws, c. 24) a taxpayer may maintain an action against ‘all officers, agents, commissioners and other persons acting, or who have acted, for or on behalf of’ any public corporation. Such an action may be maintained for any of the following purposes: (1) To prevent any illegal official act; (2) to prevent waste or injury to any property, funds, or estate of such public corporation; and (3) to compel restitution of such property.
At common law a taxpayer as such has no right of action against a public officer to restrain or prevent the waste of public funds or injury to public property, or to restrain a threatened illegal official act. In England the Attorney General, in right of the prerogative of the crown, could sue in equity to enjoin the execution of a trust of property by public corporations or the governors thereof. The taxpayer, however, had no right to demand, either at law or equity, the vindication of the public right unless the violation of that right affected him injuriously in some peculiar manner in which other members of the community were not equally affected. In the case of Mooers v. Smedley, 6 Johns. Ch. 28, 31, which early arose in this state, the court declined jurisdiction of a taxpayer's action, the chancellor saying:
‘I cannot find, by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control the determination of the supervisors, in their examination and allowance of accounts as chargeable against their county, or any of its towns, and in causing the money so allowed to be raised and levied.’
The principle here asserted has been often reiterated and applied. Doolittle v. Supervisors of Broome Co., 18 N. Y. 155;Roosevelt v. Draper, 23 N. Y. 318, 323;People v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178; Kilbourne v. St. John, 59 N. Y. 21, 17 Am. Rep. 291; Guest v. City of Brooklyn, 69 N. Y. 506.
The Legislature recognized that this condition of the law was inadequate to protect the public rights where public officials who were charged with the enforcement of the law were themselves guilty of waste or injury to public funds or property or illegal official acts. The need for legislation upon this subject was made very apparent in the litigation growing out of the frauds of Tweed and his associates in the city and county of New York. People v. Ingersoll, supra.
The purpose of the statutes authorizing a taxpayer's action is not to confer upon the taxpayer the power to bring actions which the public authorities have no power to bring, but these statutes are designed to confer upon the taxpayer the right to bring such an action in the cases specified in the statute which are cases where the relief sought could be obtained by appropriate proceedings on the part of public officers.
The first statute adopted upon this subject was the act of 1872, chapter 161. It was entitled
‘An act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents.’
It authorized a taxpayer to maintain an action ‘to prevent waste or injury to any property, funds or estate’ of public corporations. The constitutionality of this act was upheld in People v. Tweed, 63 N. Y. 202, 207. This statute was amended by chapter 526 of the Laws of 1879.
The original act of 1872 (chapter 161) was repealed by chapter 245, section 1, subdivision 48, of the Laws of 1880, but chapter 526 of the Laws of 1879 was not repealed by that act, but was amended by chapter 435 of the Laws of 1880. This amendatory statute amplified these provisions of the law so as to include the auditing of ‘fraudulent, illegal, unjust or inequitable claims.’ This act of 1880 (chapter 435) was itself repealed by chapter 531 of the Laws of 1881, but not until after the substance of it had been embodied in section 1925 of the Code of Civil Procedure. The embodiment of the substance of these statutes in section 1925 of the Code of Civil Procedure removed any doubt as to the Legislature's intent to continue these provisions of law that otherwise might have arisen from their frequent amendment and repeal. See note to section 1925 in Throop's Code of Civil Procedure [1880] and Hills v. Peekskill Savings Bank, 26 Hun, 161, 164; reversed 101 N. Y. 490, 5 N. E. 327.
[2] If the relief which the plaintiff seeks in this action depended solely upon the provisions of section 1925 of the Code of...
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