Barile v. City Comptroller of City of Utica

• Decision Date: 06 March 1968
• Citation: 56 Misc.2d 190,288 N.Y.S.2d 191
• Parties: Petition of Louis BARILE, City Treasurer of Utica, New York and Taxpayer of the City of Utica, New York, Petitioner, v. The CITY COMPTROLLER OF the CITY OF UTICA, New York, Frank Donalty, Respondent. Application of James J. LANDERS, Theodore C. Camesano and Ben L. Listovitch, Petitioners, v. Vincent J. WERESZYNSKI et al., Respondents.
• Court: New York Supreme Court

Page 191

288 N.Y.S.2d 191

56 Misc.2d 190

Petition of Louis BARILE, City Treasurer of Utica, New York

and Taxpayer of the City of Utica, New York, Petitioner, v. The CITY COMPTROLLER OF the CITY OF UTICA, New York, Frank

Donalty, Respondent.

Application of James J. LANDERS, Theodore C. Camesano and

Ben L. Listovitch, Petitioners, v. Vincent J. WERESZYNSKI et al., Respondents.

Supreme Court, Special Term, Oneida County.

March 6, 1968.

[56 Misc.2d 191] Longeretta & Longeretta, Utica, for petitioner, Louis A. Barile, by John A. Longeretta, Utica.

Howard D. Seld, Utica, for petitioners Landers, Camesano and listovitch.

Fred Nassar, Corp. Counsel, Utica, for respondents, City Comptroller and Wereszynski and others, by Rocco Solimondo, Asst. Corp. Counsel.

DECISION

RICHARD D. SIMONS, Justice.

These proceedings place in issue the validity of Local Law $8 of 1967 of the City of Utica adopted over the veto of the Mayor by vote of the Common Council at a special meeting on December 30, 1967. The terms of that legislation increased the salary of certain elected officials.

The facts are not in dispute. On December 16, 1967, the Local Law was adopted by the Common Council by a vote of eight to zero. It was presented to the then Mayor for his veto or approval. On December 27, 1967, without holding a public hearing, the Mayor vetoed the law and returned it to the City Clerk objecting to it on the grounds that the salaries were excessive and beyond the city's financial means. The President of the Common Council called a special meeting for December 30, 1967 and at that meeting, the Local Law was presented by the City Clerk and passed by the Common Council 8 votes to 1. The Local Law was mailed to the Secretary of State for filing on January 19, 1968. The City Comptroller has been issuing salary warrants for the increased salary since January 1, 1968.

It will be helpful to point out that new terms of office for elected officials of the City of Utica commenced on January 1, 1968, thus the attempt to pass the law prior to the expiration of the terms of office ending in 1967. A local law may be adopted increasing the salaries of persons not yet in office, but a local law increasing the salary of any elected official during his term of office is subject to permissive referendum under the provisions of Municipal Home Rule Law § 24, subd. 2, par. h. The incumbents of the office of City Treasurer, President of the Common Council and all the members of the Common Council during the term expiring December 31, 1967 were the same as those elected to take office January 1, 1968. Effective January 1, 1968, a new Mayor and a new City Comptroller took office.

The first proceeding is brought by the City Treasurer as Treasurer, and also as a taxpayer, against the City Comptroller pursuant to CPLR Art. 78 and seeks an injunction restraining the City Comptroller from issuing salary warrants in accordance with Local Law $8 on the ground that it is invalid because of procedural defects in its passage.

The second proceeding is similarly commenced by resident taxpayers ¹ of the city to declare the law invalid and obtain restitution of the excess salary payments.

The respondents cross move to dismiss the petitions in both proceedings for failure to state facts sufficient to constitute a cause of action pursuant to CPLR 3211(a) 7 and on the ground that the proceeding is improper in form.

Respondents urge that an Article 78 proceeding may not be used to review a legislative act. Matter of Neddo v. Schrade, 270 N.Y. 97, 200 N.E. 657; Long Island R. Co. v. Hylan, 240 N.Y. 199, 148 N.E. 189; Matter of Paliotto v. Cohalan, 6 A.D.2d 886, 177 N.Y.S.2d 553, aff'd 8 N.Y.2d 1065, 207 N.Y.S.2d 281, 170 N.E.2d 413. That is the generally accepted rule when the proceeding questions the wisdom of the legislation or seeks to compel legislative changes. But Article 78 relief is appropriate to collaterally attack administrative action threatened or done pursuant to an invalid law. Bergerman v. Gerosa, 208 Misc. 477, 144 N.Y.S.2d 95, aff'd 2 A.D.2d 659, 152 N.Y.S.2d 363, aff'd 3 N.Y.2d 855, 166 N.Y.S.2d 306, 145 N.E.2d 22; Policemen's Benevolent Association of Westchester County, Inc. v. Board of Trustees of the Village of Croton-on-hudson, 21 A.D.2d 693, 250 N.Y.S.2d 523; cf. 39 St. John's Law Review 49, 58 'Reviewability of Quasi-Legislative Acts of Public Officials in New York Under Article 78 of the CPLR.'

In any event, the proceeding should not be dismissed simply because it may be improper in form. The court may treat the proceeding as a plenary action to declare the invalidity of Local Law $8. CPLR 103; Matter of Mandis v. Gorski, 24 A.D.2d 181, 265 N.Y.S.2d 210; Nowak v. Wereszynski, 21 A.D.2d 427, 250 N.Y.S.2d 981. If the municipality has proceeded under a want of authority or in excess of its authority, judicial intervention is warranted. Stahl Soap Corporation v. City of New York, 5 N.Y.2d 200, 182 N.Y.S.2d 808, 156 N.E.2d 443; Mastrangelo v. State Council of Parks, 22 A.D.2d 947, 256 N.Y.S.2d 28; Mandis v. Gorski, supra.

The petitioners, as City Treasurer and as resident taxpayers of the City of Utica have capacity as co-trustees and cestuis que trustent of city property, funds and effects to maintain these proceedings. Second Class Cities Law § 22; Nowak v. Wereszynski, supra. The Second Class Cities Law authorizes an action, in addition to other remedies provided by law, to prevent waste and injury to public property. The action, while similar to a taxpayer's action under General Municipal Law § 51, is a separate and distinct remedy not requiring the necessary assessed valuation or bond. Gregory v. Simpson, 173 App.Div. 6, 159 N.Y.S. 1016; Hearst v. McClellan, 102 A.D. 336, 92 N.Y.S. 484 (construing Greater New York Charter, § 59, which is similar to Second Class Cities Law § 22). If the respondents are authorizing, paying or receiving salary funds illegally, then petitioners are entitled to injunctive relief. Hicks v. Eggleston, 105 A.D. 73, 93 N.Y.S. 909.

Adoption of local laws is governed by the provisions of Municipal Home Rule Law Art. 3. After a local law is adopted by the legislative body, § 21, of that statute provides that it shall be forwarded to the Mayor for his approval or veto. If the Mayor disapproves it, he shall return it to the Clerk of the Common Council with his objections to be transmitted to the local legislative body at its next regular meeting. The legislative body may, within 30 days thereafter, reconsider and adopt the same by appropriate vote.

In this instance, the local law vetoed by the Mayor was returned to the Common Council by the clerk at a special meeting called to receive the veto and the objections and to adopt the local law.

Petitioners contend that the Council could only override the Mayor's veto at a regular meeting, i.e., a meeting established by the general orders and rules of the Council and the law is, therefore, void. Respondents' position is that this was merely an irregularity which does not strip the Local Law of its force and effect.

There is no prohibition against overriding a veto at a special meeting. The Local Law may be reconsidered by the Council at any time within thirty days after the clerk returns the legislation with the Mayor's objections and enters them in the Council records. The prohibition is against the clerk submitting the legislation at any but the next regular meeting. The Local Law was not properly before the Common Council on December 30, 1967.

When the statute says a regular meeting, it does not mean a special meeting. Thus, Second Class Cities Law § 33, provides: 'The common council shall hold regular meetings at times to be determined by it * * * The president of the common council, or a majority of its members, may call a special meeting, etc.' A special meeting is a meeting called for a special purpose. It is a meeting at which nothing can be done beyond the specified objects of the call. C.f. 39 A, Words and Phrases, Special Meeting, p. 301, and cases cited thereunder. A regular meeting is a meeting convened at a stated time and place...