Opinion
November 16, 1954
Lester B. Lipkind for plaintiff.
Wilbur H. Schneider, Arthur L. Milligan, George J. Aspland and Joseph F. O'Neill for Gilbert C. Hanse, as Mayor, and others, defendants.
This is a motion by the Board of Trustees of the Village of Babylon individually and as members of said board to dismiss the second cause of action as set forth in the first complaint of a consolidated action on the ground that it appears on the face of the complaint that the facts as stated in said second cause of action are not facts sufficient to constitute a cause of action. The cause of action under attack is one whereby the plaintiff in a taxpayer's action seeks to reform a deed of conveyance from the County of Suffolk to the Village of Babylon, said conveyance consisting of approximately 45 acres of land located on the easterly boundary of the village of Babylon.
The cause of action pleaded by the plaintiff states in effect that it was the mutual understanding between the County of Suffolk and the village officials that said land was to be used for park purposes. However, due to an inadvertent mistake, the drawer of the instrument failed to insert therein that the property was to be used for park purposes.
It is further alleged that the Village Board of Trustees has failed to take steps to reform the deed upon plaintiff's request to do so.
The plaintiff in a taxpayer's action must meet the requirements of section 51 Gen. Mun. of the General Municipal Law. A reading of that statute makes it clear that when a taxpayer is suing in a representative capacity he may bring his action to: 1 — prevent any illegal official act; and, 2 — prevent waste or injury, or to restore and make good any property of the municipality. (See, also, Altschul v. Ludwig, 216 N.Y. 459.)
Here, the plaintiff has failed to show in this cause of action that he comes within the afore-mentioned statute.
Motion granted as to the moving parties.
Submit order.