Greene v. Knox

• Decision Date: 25 June 1903
• Citation: 67 N.E. 910,175 N.Y. 432
• Parties: GREENE v. KNOX et al., Civil Service Com'rs, et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 432

67 N.E. 910

GREENE

v.KNOX et al., Civil Service Com'rs, et al.

Court of Appeals of New York.

June 25, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by J. Warren Greene against Charles H. Knox and others. From an order of the Appellate Division 78 N. Y. Supp. 779) reversing an interlocutory judgment overruling a demurrer to the complaint, plaintiff appeals. Affirmed.

Edward M. Shepard and Samuel H. Ordway, for appellant.

William C. De Witt, for respondent Edward A. Gaus.

Abram I. Elkus and James M. Proskauer, for respondents James Gannon et al.

WERNER, J.

This action is brought by the plaintiff, as a taxpayer of the city of New York, to restrain the payment of salaries to the defendants Gaus, Gannon, and Lantry, who are police captains. The other defendants are interested only in their official capacities, and the police captains above named will therefore be referred to as the defendants.

The complaint is demurred to on the following three grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the plaintiff has no legal capacity to sue; third, that causes of action have been improperly united in the complaint.

The second and third grounds of demurrer may be at once eliminated from the discussion, because, by the express terms of the statutes which will hereafter be referred to in another connection, a qualified taxpayer is given legal capacity to sue in such an action as this; and because sections 447 and 452 of the Code of Civil Procedure clearly authorize the joinder as defendants of persons whose separate interests spring from a common cause, in such a way that an adjudication upon their several rights cannot be had without the determination of the fundamental question upon which the rights of all depend. Brinkerhoff v. Brown, 6 Johns. Ch. 139;Osterhoudt v. Board of Supervisors, 98 N. Y. 239.

This leaves for discussion the first certified question: ‘Does the complaint state facts sufficient to constitute a cause of action?’ There are three statutes which a taxpayer may invoke in aid of an action brought by him for the public benefit against municipal officers or agents. The first of these statutes is section 1925 of the Code of Civil Procedure, under which a plaintiff may ask for judgment preventing waste of or injury to the estates, fund, or property of a municipality. The second statute is chapter 301, p. 620, Laws 1892, under which officers, agents, or persons acting, or who have acted, for a municipality, may be prevented from doing or continuing illegal official acts or committing waste, and may be compelled to make good or restore any municipal funds or property unlawfully paid out or appropriated. The third statute is section 27 of the civil service law (chapter 370, p. 812, Laws 1899), which provides that the right of a taxpayer to bring an action to restrain the payment of salaries out of municipal funds shall not be limited or denied because the office, place, or employment affected by the suit ‘shall have been classified as, or determined to be, not subject to competitive examination.’

The allegations of the complaint are very voluminous and specific, but they need not be analyzed in detail, since, in our view of the case, the sufficiency of the pleading depends upon the single question whether the title to office, complete and regular on its face, can be tried in a taxpayer's action brought to restrain the payment of salaries. It must be conceded that, if such a title to office can be tried in such an action, then a good cause of action is stated; but if the title to office, regular and valid on its face, cannot be tried in such an action, then it is plain that the complaint is bad.

It is affirmatively alleged that the appointments of the defendants were regular in form, and were made in compliance with every requirement of the letter of the law that was essential to their validity. The allegations to that effect are coupled with others that impugn the regularity of these appointments as being fraudulent and colorable, but the latter allegations are largely statements of mere conclusions of law, which are not admitted by the demurrer, while the former allegations contain statements of fact, which for present purposes must be regarded as established. We have here, then, three defendants holding regular and presumptively valid appointments in the civil service, the payment of whose salaries is sought to be enjoined on the ground that, although their appointments are valid in form, they are invalid in fact.

It is apparent from a mere glance at the complaint that the facts which must be proved to support plaintiff's charges of invalidity in the appointments of the defendants are outside of the record, and it is difficult to see how such an action, predicated upon such allegations, can be maintained unless the question of title to office can be tried and decided therein. In this connection it may be observed that counsel for the plaintiff practically concedes that the title to office cannot be tried in such an action as this, although he suggests that ‘in this scrutiny of the pay poll’ the validity of the defendants' appointments ‘will be collaterally considered,’ but he asserts that ‘the real aim and object of this action is to enjoin the payment of the salaries of the respondents as police captains.’

In the learned counsel's suggestion that the trial of the issues tendered by the complaint will involve at least a collateral consideration of the title to office, we find the keynote to the real question involved. How far can the court probe into the title to office in a taxpayer's action to restrain payment of salaries? We quite agree to the proposition that in a taxpayer's action to restrain payment of salaries the court may collaterally consider title to office, but not otherwise. Such was the case, for instance, in Rogers v. Common Council of Buffalo, 123 N. Y. 173, 25 N. E. 274,9 L. R. A. 579, where there was no pretense of compliance with the law in the appointment of a street inspector, and where the latter's title to office depended wholly upon the alleged unconstitutionality of the civil service statutes; and in Peck v. Belknap, 130 N. Y. 394, 29 N. E. 977, where the defendant, a lamp inspector, claimed immunity from civil service rules on the ground that he was an independent contractor. In both of these cases the appointments were clearly invalid unless and...