Ziegler v. Chapin

Decision Date05 May 1891
Citation27 N.E. 471,126 N.Y. 342
PartiesZIEGLER v. CHAPIN et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, second department.

Geo. F. Danforth, Almet F. Jenks, Wm. C. De Witt, and Thos. E. Pearsall, for appellants.

Wm. J. Gaynor, for respondent.


It is conceded that we cannot review the order of the special term which restrains the defendant officials from purchasing the property and franchises of the Long Island Water Supply Company, if the complaint states a good cause of action. The suit is brought by a tax-payer of the city of Brooklyn to prevent such purchase, as being illegal and unauthorized, and amounting to a waste of the property and funds of the city, and it was a proper and reasonable exercise of discretion on the part of the court to restrain the purchase pending the litigation in aid of the plaintiff's remedy, unless we are able to see, on an examination of the complaint, that he is clearly and certainly not entitled to the ultimate relief which he seeks. The appeal comes to us dependent upon that proposition, and with a frank acknowledgment that the appellants can only succeed by satisfying us that the plaintiff has suffered no actionable wrong and is entitled to no equitable relief. In so far as the complaint is founded upon allegations of waste, the appellants appear to be right in their assertion that no cause of action is pleaded; for, while the complaint alleges the meditated payment of an extravagant price, and states facts which are claimed to indicate a want of prudence and good judgment on the part of the mayor and his associates, yet those facts and the inferences claimed are not beyond the possibility of explanation and criticism, and the complaint contains no averment of fraud or collusion or bad faith on the part of the purchasing officials. We have quite recently declined to become arbitrators between tax-payers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions like that before us only where some fraud or collusion or bad faith is alleged and proved. Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. Rep. 263. It is said, however, on behalf of the plaintiff, that the complaint does contain allegations of fraud on the part of the water supply company; averments that it induced the defendant officials to contract for the purchase by false representations, known to be such and made with intent to deceive, as to the revenues of the company, and the earnings and value of the stock. But the action authorized by section 1925 of the Code1 is one which the tax-payer may bring against the public officer because of some fraud or bad faith on his part, or to restrain some illegal action. It was not intended as a mode of putting an incapable or confiding official under the protecting guardilanship of the court, and of making him a ward in chancery, to be shielded from the effects of his own folly, nor to enable a tax-payer to try a question of fraud between the officer and those who are dealing with him. If the officer is honest and faithful, no suit against him is needed. The tax-payer may explain to him the facts, and discover to him the fraud, and the courts are open for his protection, and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act, and persists in carrying out the wasteful contract, that an action against him is needed; and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved. The legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a tax-payer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents.

The action, therefore, can only be maintained, if at all, upon the further ground that the contemplated purchase by the mayor and his associates is beyond their authority, and wholly illegal and void. The complaint contains that averment. There is no disagreement as to the source of the authority to purchase, if any has been granted, and it is claimed to exist in the terms of the annexation act which merged the town of New Lots in the city of Brooklyn. Laws 1886, c. 335. Section 5 of that act reads thus: ‘The mayor, comptroller, and auditor of the city of Brooklyn are hereby authorized, for and in the name of the city of Brooklyn, to purchase the reservoir, well, machinery, pipes, franchises, and all other property of said company, when and at such price as may be agreed upon by said officers, and by the said company, by its board of directors, who are hereby authorized to sell and convey the same to said city; and, in case said parties shall be unable to agree upon a price for the purchase and sale of the said property, then, in that case, the power to acquire said property and franchises, by the right of eminent domain, is hereby expressly delegated to said city of Brooklyn; and the said officers, in the name of and for said city, within two years hereafter, may proceed to acquire, and may acquire, all such property, by proceedings such as are required for the acquiring of additional land for railway purposes by corporations formed under the provisions of chapter one hundred and forty of the Laws of eighteen hundred and fifty; and all such property, when thus purchased and acquired, shall thereupon become and be a part of the water supply property of the said city; but it shall be held subject to two mortgages now on said property, each made to secure the sum of two hundred and fifty thousand dollars and interest.’ I have quoted the section at length, in order that we may better judge between the two opposing constructions which have been presented for our consideration. As often happens, one clings to the precise letter of...

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19 cases
  • Gaynor v. Rockefeller
    • United States
    • New York Supreme Court — Appellate Division
    • April 21, 1964
    ... ... 110, 99 N.E. 241). The term 'waste or injury' as used in Section 51 contemplates more than improvident or unwise spending of public funds (Ziegler v. Chapin, 126 N.Y ... 342, 27 N.E. 471; Kraushaar v. Zion, Sup., 135 N.Y.S.2d 491); it refers to and includes only illegal, wrongful or dishonest ... ...
  • Chittenden v. Wurster
    • United States
    • New York Court of Appeals Court of Appeals
    • April 20, 1897
    ...because of the illegality of the municipal action. Improvidence, or lack of wisdom, would not warrant such an action. Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471, was an action brought by a taxpayer of the city of Brooklyn against the mayor and other officials to annul a contract made by......
  • Edenwald Contracting Co., Inc. v. City of New York
    • United States
    • New York Supreme Court
    • February 27, 1974
    ...by law to act, in the absence of fraud, corruption, or bad faith (Talcott v. City of Buffalo, 125 N.Y. 280, 26 N.E. 263; Ziegler v. Chapin, 126 N.Y. 342, 27 N.E. 471; cf. Brockway Motor Truck Corporation v. City of New York, 145 Misc. 693, 698, 261 N.Y.S. 725), where there is no clear showi......
  • Kittinger v. Buffalo Traction Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • October 10, 1899
    ...it be averred that such intended action is unwise, and without due regard to economy. Talcott v. City of Buffalo, supra; Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. 471. The latter case did not relate to the action of a common council, and in the former one the court, in holding that the tax......
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