Opinion
December, 1908.
J.F. Smith, for plaintiff.
C.P. Baker and A.T. Hopkins, for defendants.
The charter provision as to submitting a verified claim in writing may be waived by the common council, in so far as requiring the presentation of a claim before any investigation or action may be taken thereon.
The provision is mandatory upon a claimant, and has for one of its purposes the design of holding a claimant to an honest statement of his claim to be made under oath, subjecting him, therefore, to a charge of presenting a false claim.
A claimant could not proceed at law until such a claim was filed in accordance with the direction of the charter, but the common council may, for any reason sufficient to itself, waive such formality and proceed to investigate and determine a claim brought to its attention in a way other than by a verified statement. The verified statement must indeed be filed before a payment is made, and the filing of a verified claim as condition precedent to payment in this case disposes of any question of lack of good faith or irregularity.
The law is not designed to further a taxpayer's action when merely a failure to follow formality in procedure has been disregarded, but rather when the act itself is illegal or wrongful. The taxpayer's act (L. 1881, ch. 531, as amd. L. 1892, ch. 301), was not designed or intended to draw into the preventive jurisdiction in equity, at the instance of any taxpayer, every wrongful official action, irrespective of the fact whether the act sought to be restrained involves a waste of public property, or a violation of public rights, or any injury to the interest of taxpayers, as such.
Its purpose is to prevent usurpation of powers by public officials, from which public injury might result, and to restrain illegal acts threatened which would produce public mischief. Rogers v. O'Brien, 153 N.Y. 362.
If the act sought to be enjoined is within the general scope of the powers conferred upon the common council, the act done may not be "illegal" within the sense of the statute, although done in an irregular manner and not in strict accordance with the particular mode, method or manner prescribed by the charter. A mere disregard of legal formalities or orderly mode of procedure prescribed, may not necessarily render a resolution "illegal." It is not every departure from the regular mode prescribed in the charter that will render the whole procedure of the common council "illegal" or void.
The statute only authorizes actions by taxpayers when the acts complained of are without power, or when corruption, fraud, or bad faith amounting to fraud, is charged (Craft v. Lent, 53 Misc. Rep. 483); and it is held that an injunction pendente lite should not issue in a taxpayer's suit to annual a city contract unless it clearly appears that upon the law and the facts the official action complained of is illegal. Stockton v. City of Buffalo, 108 A.D. 171, 174.
Motion to vacate injunction granted.