Opinion
Argued May 2, 1905
Decided May 30, 1905
Thomas Young for appellant.
George Wallace, appellant, in person.
Charles F. Brown, Fred Ingraham and Henry A. Monfort for respondents.
The action is brought by a taxpayer of the county of Nassau against three defendants, who composed the board of supervisors of said county, to recover from them the amount of certain items in the several bills of said defendants for alleged services, mileage and disbursements as supervisors, which it is alleged were illegally and collusively audited by said board. The complaint purports to set forth three causes of action; the first for the sums illegally paid to one defendant; the second for the sums paid to another defendant, and the third for the sums paid to the last defendant. These causes of action are stated in the same form, and each concludes, "On information and belief that the said defendant (the one to whom the payment was made) knew when presenting said claims that the sums claimed were in excess of the fees allowed to him by law, and that such claims were collusively audited and allowed by said Board to aid said defendant in having such illegal fees paid from the funds of the county; that the said auditing and allowing of said claims in favor of the defendant (the same defendant as above referred to) was a breach of trust and duty on the part of the defendants, and said acts of the defendants were fraudulent as against the plaintiff and other taxpayers of the said county of Nassau." To this complaint all the defendants demurred on the ground that several causes of action had been improperly united, and each defendant separately demurred to the two causes of action which stated the claims alleged to have been illegally paid to the other two defendants. The Special Term gave judgment for the defendants on the demurrer, which has been affirmed by the Appellate Division.
We think each separate cause of action set forth a good cause of action against all the defendants. Section 1 of the "Taxpayers' Act," as it is usually called (Ch. 531, Laws of 1881, as amended by ch. 673, Laws of 1887, and ch. 301, Laws of 1892), provides that all officers of any county may be prosecuted, and an action maintained against them by a taxpayer to prevent any illegal official act or to prevent waste and injury to, or to restore or make good, any property, funds or estate of such county, and in case the injury complained of consists in any board, officer or agent by collusion or otherwise allowing, or paying, or conniving at the audit of any fraudulent or illegal demand, the court shall enforce the restitution and recovery thereof, if theretofore paid, and "also may, in its discretion, adjudge and declare the colluding or defaulting official personally responsible therefor, and out of his property * * * provide for the collection or repayment thereof." It is conceded by the learned counsel for the respondents that officers who by their fraudulent and collusive acts suffer the funds of the county to be illegally paid out may be properly joined as defendants in an action to recover such funds, but he contends that the general allegation of the complaint that the claims were collusively audited by the demurring defendant is insufficient and that there should be charged specific allegations of fact of which the court can predicate collusion. This contention is not well founded. The complaint, supplemented by the schedules thereto attached, and forming part thereof, specifically alleges in detail the illegality and fraudulent character of the several claims audited and allowed. It charges that the defendant presenting said claims knew that the sums were in excess of the fees allowed by law. If the complaint had then alleged that the demurring defendants also knew that the claims were in excess of the fees allowed by law no question could be made as to its sufficiency. This, however, is the fair import of the term "collusive." The word is the one used in the statute, and is defined by the lexicographers to mean "fraudulently concerted." The allegations of the complaint were, therefore, sufficient, for, as said by this court in Sage v. Culver ( 147 N.Y. 241), "the pleading will be held to state all facts that can be implied from the allegations by reasonable and fair intendment, and facts so impliedly averred are traversable in the same manner as though directly stated." Of course, if there had been no specific allegation in the complaint of the respects in which the claim audited and paid was illegal and fraudulent a very different question would be presented, for, as has been repeatedly held, a mere general allegation of fraud or illegality is insufficient.
The next question presented by demurrer is whether the several causes of action were properly united in the same complaint. The 9th subdivision of section 484 of the Code of Civil Procedure authorizes the joinder of causes of action upon claims arising out of the same transaction or transactions connected with the same subject of action. It appears from an examination of the whole complaint that the separate bills of the several defendants were of the same character, and they are charged to have been illegal and fraudulent in the same respects. The bill of each of the defendants was audited and allowed by the other two, though on different days. If the complaint had expressly charged that the bills were audited in pursuance of an agreement between the parties that the bill of each should be allowed by the other two, I think it plain that all the claims would arise out of the same transaction within the meaning of the Code. It is possible that under the doctrine of Sage v. Culver, already cited, such a charge may be implied from the other allegations of the complaint. However that may be, I think that the three causes of action were properly joined under subdivision 6 of section 484, which authorizes the joinder of claims for injuries to personal property. The causes of action are to recover moneys illegally and fraudulently obtained from the county of Nassau, and while there is no decision of this court on the subject it has been uniformly held in the Supreme Court that an action of fraud is for injury to personal property and that several claims of that character may be joined in a single suit. In Cleveland v. Barrows (59 Barb. 364) the complaint declared on two causes of action, one for fraud in the sale of a canal boat and the second for the conversion of certain personal property. On demurrer it was decided that the two causes of action were properly joined, the court holding that an action for fraud was an action for injury to property. That case was followed in De Silver v. Holden (18 J. S. 236). In the recent case of Benedict v. Guardian Trust Company ( 58 App. Div. 302) the action was brought to recover damages for fraudulent representations made in a prospectus, on eighteen assigned claims of parties who had been induced to purchase stock by such fraudulent representations. On demurrer it was held that the several causes of action were properly united under the section of the Code referred to. The cases cited seem to have been correctly decided on principle, and control the disposition of that now before us. We think that the demurrer to the complaint was improperly sustained.
The judgment of the Special Term and that of the Appellate Division should be reversed and judgment ordered for plaintiff on demurrer, with costs in all the courts, with leave to the defendants to withdraw demurrer and serve answer within twenty days after notice of the entry of this judgment upon the payment of such costs.
O'BRIEN; BARTLETT and VANN, JJ. (GRAY and WERNER, JJ., in result), concur; HAIGHT, J., not voting.
Judgment reversed, etc.