Blaikie v. Lindsay

• Decision Date: 28 April 1971
• Citation: 66 Misc.2d 668,321 N.Y.S.2d 388
• Parties: Robert B. BLAIKIE, on behalf of himself and all other citizens, residents and taxpayers of the City of New York similarly situated, Plaintiff, v. John V. LINDSAY, individually, and as Mayor of the City of New York, and J. Lee Rankin, individually, and as Corporation Counsel of the City of New York, Defendants.
• Court: New York Supreme Court

Page 388

321 N.Y.S.2d 388

66 Misc.2d 668

Robert B. BLAIKIE, on behalf of himself and all other citizens, residents and taxpayers of the City of New York similarly situated, Plaintiff, v. John V. LINDSAY, individually, and as Mayor of the City of New York, and J. Lee Rankin, individually, and as Corporation Counsel of the City of New York, Defendants.

Supreme Court, Special Term, New York County, Part I.

April 28, 1971.

H. Leonard King, New York City, for plaintiff.

J. Lee Rankin, Corp. Counsel (John J. Loflin, Alfred Weinstein, New York City, of counsel), for defendants.

SIDNEY H. ASCH, Justice.

Plaintiff, a citizen and taxpayer of the City and State of New York, has brought an action for a judgment directing defendant John V. Lindsay, individually, and as Mayor of the City of New York, to discharge J. Lee Rankin from his position as Corporation Counsel of the City of New York.

The grounds of the action are that defendant Rankin is deliberately violating Section 10(a) of Local Law No. 58 of the City of New York of 1967. That law amended paragraph (a) of Section 1100 of the New York City Charter to read as follows:

'Every head of an administration or department or elected officer except councilmen who receives a salary from the city shall give his whole time to his duties and shall not engage in any other occupation, profession or employment.'

Plaintiff contends that defendant Rankin is deliberately violating the quoted statute by maintaining a law office and engaging in the private practice of law.

Plaintiff now moves for an order directing the defendant Mayor, pending the trial of this action, to immediately remove the defendant Corporation Counsel from his office.

Defendants cross-move to dismiss the complaint on the ground that plaintiff lacks the legal capacity to sue and on the further ground that the complaint fails to state a cause of action.

The issues raised by the attack on plaintiff's standing are only deceptively easy to resolve. It is sometimes overlooked that '* * * when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.' (Flast v. Cohen, 392 U.S. 83, at 99--100, 88 S.Ct. 1942, at 1952, 20 L.Ed.2d 947.)

It is asserted by defendants that in order for plaintiff to bring this action, he is required to be a 'real property taxpayer.' They maintain that as a prerequisite, before a person may challenge the constitutionality or legality of a statute, or the conduct of a public agency or officer, he must show a specific interest which is threatened or banned by the defendant. Mere status of a taxpayer or citizen, as relied on by plaintiff, is not enough.

Superficially, it appears that this 'rule is one which judicially formulated, has been applied by this court for more than 100 years.' (See, dissent of Fuld, J., St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, at 77, 242 N.Y.S.2d 43, at 45, 192 N.E.2d 15, at 17, and authorities there collected.) However, these precedents, as applied to the instant case, seem neither warranted by authority nor public policy.

Section 51 of the General Municipal Law, upon which both the plaintiffs and defendants seem to rely, contains a statutory prescription for the standing required to bring certain actions. It provides that 'any person * * * whose assessments shall amount to one thousand dollars' may maintain an action against a country, town, village or municipal officer 'to prevent any illegal official act,' 'or to prevent waste or injury to, or to restore or make good' any property of such governmental unit.

The title to Section 51 reads: 'Prosecution of officers for illegal acts.' Its dominant purpose apparently was to permit a taxpayer to bring a lawsuit to protect a property or financial interest. Thus, it has not been considered necessary that a person bringing an action under this section be a resident of the municipality if he is a taxpayer. (Steele v. Village of Glen Park, 193 N.Y. 341, 86 N.E. 26; Olin v. Town of North Hempstead, Sup., 194 N.Y.S.2d 979; see also, Wenk v New York, 171 N.Y. 607, 64 N.E. 509; Wey v. O'Hara, 48 Misc. 82, 95 N.Y.S. 81.) Bare illegality has been deemed insufficient to warrant a taxpayer's action. It has required, in addition, a claim that the acts complained of have caused or will cause injury to the city and waste of its funds or property. (Bauer v. City of Niagara Falls, 262 App.Div. 938, 29 N.Y.S.2d 448; Wilmerding v. LaGuardia, 176 Misc. 449, 26 N.Y.S.2d 105; Sweeney v. Farrington, 38 Misc.2d 882, 239 N.Y.S.2d 254; Schreiber v. Wagner, 37 Misc.2d 985, 235 N.Y.S.2d 173; Simone v. Kennedy, 26 Misc.2d 748, 212 N.Y.S.2d

What is surprising is that neither plaintiff nor defendant have either alluded to Section 36 of the Public Officers Law or compared its provisions to Section 51 of the General Municipal Law. It is the former section which actually pertains to the removal of a local officer for 'misconduct,' the relief sought in this action. It is striking that the 'application for such removal may be made by any Citizen resident' (italics added) under this section. The appropriate forum for such relief is 'the appellate division of the supreme court held within judicial district embracing (the local unit of government concerned).' The provision has been invoked for the removal of a town attorney. (Sullivan v. Taylor, 279 N.Y. 364, 18 N.E.2d 531.)

Section 36 of the Public Officers Law, by its terms, appears to be limited to a 'town, village, improvement district or fire district officer, except a justice of the peace.' But a comparison of the language and purposes of the Section 51 of the General Municipal Law with Section 36 of the Public Officers Law, throws significant light on the 'standing' of plaintiff in the instant action. Under section 36 of the Public Officers Law, an application for the removal of an officer on the basis of alleged misconduct may be made by a Citizen resident of the locality. Under Section 51 of the General Municipal Law the action directed against the public official must be brought by A person whose assessments amount to one thousand dollars. And consistently, the gravamen of such actions seem to be an injury or threatened injury to some property or financial interest of such plaintiff.

To decide that the 'standing' requirements of section 51 of the Municipal Corporation Law bar the plaintiff in this action seems to lead to an incongruous result. It would mean that citizen residents of towns and villages where many people do own assessed property, could apply to remove officials while in a metropolis where most citizen residents are landless taxpayers, they would be barred. Such a distinction seems anachronistic when ownership of land has been abolished as a prerequisite to the exercise of most civic rights. It seems incredible that the denizens of our cities, burdened as they are with municipal sales taxes, income taxes, and the hazards and vicissitudes of urban living, cannot be considered to have a sufficient stake to bring a lawsuit such as the instant one.

The philosophy which bars a citizen-taxpayer who cannot show any direct or personal injury from challenging official action has been subjected to critical analysis. Chief Justice Fuld, dissenting in St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, at p. 78, 242 N.Y.S.2d 43, at p. 45, 192 N.E.2d 15, at p. 17, stated:

'At the present time, virtually every state, either by decision or by statute--New York, by section 51 of the General Municipal Law Consol. Laws, c. 24,--permits taxpayers to challenge Local action and at least 34 states clearly sanction taxpayers' suits at the state level, that is, actions by state taxpayers challenging state action; indeed, only two states--New York and New Mexico--squarely prohibit such actions. (See Jaffe, Standing to Secure Judicial Review; Public Actions, 74 Harv.L.Rev. 1265, 1278; Note, Taxpayers' Suits, 69 Yale L.J. 895, 900--902.)'

Significantly, in a footnote to the same dissent, Chief Justice Fuld, stated:

'It is difficult to reconcile the cited cases with those involving challenged official action with respect to nonfiscal matters. (See e.g., Matter of Cash v. Bates, 301 N.Y. 258, 261, 93 N.E.2d 835; Matter of Kuhn v. Curran, 294 N.Y. 207, 213, 61 N.E.2d 513; Matter of Andresen v. Rice, 277 N.Y. 271, 281, 14 N.E.2d 65; 3 Davis, Administrative Law Treatise, op. cit., pp. 249--250). In the Cash case (301 N.Y. 258, 93 N.E.2d 835, supra), for instance, the court held that 'the erroneous appointment * * * ought to be open to attack by the petitioners, because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution.'' (p. 261, 93 N.E.2d 835).

(Ibid. p. 77, fn. 2, 242 N.Y.S.2d p. 45, 192 N.E.2d p. 17; see also, the vigorous dissent by Capozzoli and McNally, Perazzo v. Lindsay, 30 A.D.2d 179, 290 N.Y.S.2d 971 (1st Dept., 1968)).

Historically, 'standing' did not require a special interest on the part of the plaintiff and this ancient English rule has persisted to the present day. (Regina v. Thames Magistrates Court, Ex parte Greenbaum (1957) Local Gov't Rep. 129, 132, 135--136).

'* * * Every citizen has standing to invite the court to prevent some abuse of power, and in doing so he may claim to be regarded not as a meddlesome busybody but as a public benefactor.'

(e.g. Lidleston v. Mayor of Exeter, 90 Eng.Rep. 567 (1697); Rex v. Mayor of Hartford, 91 Eng.Rep. 325 (1700); Rex v. Inhabitants of Glamorganshire, 91 Eng.Rep. 1287 (1702); Attorney-General v. Bucknall, 26 Eng.Rep. 600 (Ch. 1741); 4 W. Holdsworth, A History of the English Law 356 (2d ed. 1937); Jaffe, Standing to Secure Judicial Review: Private Actions, 75 Harv.L.Rev. 255 (1961); 2 E. Coke, Institutes of the Laws of England 602 (1797); Jaffe, ...