
    John Gallagher, Appellant, v. James P. Keating, Commissioner of Highways of the City of New York, and Others, Respondents.
    
      Taxpayers suit—brought after the public officer had acted—the taxpayer is not entitled, because a public officer does, iwt act, to act in his place.
    
    The legislation concerning taxpayers’ actions was not intended to break down the established rule that suits to restrain common nuisances can be maintained only by the public authorities or by private persons who show that they have sufered, or are likely to suffer, special injury therefrom.
    A taxpayer of the borough of Brooklyn, who does not claim to be the owner of property abutting on an avenue upon which, it- is proposed to erect an elevated railroad, is not entitled to maintain an action to restrain the erection of such- railroad, and its connection with an existing road ; to enjoin the city of New York from authorizing the construction of such railroad, and to have adjudged void a permit issued to the railroad company, by the commissioner and deputy commissioner of highways of the city of New York, where it appears that these officers had issued the permit in question more than a week before the commencement of the suit, and, hence, that their official action could no longer be the subject of restraint.
    A taxpayer is not authorized to bring an injunction suit against private persons or corporations upon the theory that a public officer ought to have brought such an action, and that, upon his failure to do so, the taxpayer may step into ' his place and prosecute the same as plaintiff.
    
      Appeal by the plaintiff, James Gallagher, from an .order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of February, 1899, denying the plaintiff’s motion to continue a preliminary injunction theretofore granted in the action.
    The action was brought by a taxpayer of the borough of ¡Brooklyn. to obtain an injunction restraining the defendant the Long Island Railroad Company from erecting an. elevated railroad structure, connecting its railroad with the structure of the Brooklyn 'Elevated Railroad Company, which is now being operated by the defendant Frederick Uhlmann, as'receiver; to. restrain the defendant Uhlmann, as receiver, from permitting the Brooklyn ¡Elevated Railroad Company’s railroad to be connected' with the proposed elevated structure; and to enjoin the City of ¡New York' and its officers and agents from giving or granting any - authority to said railroad companies to construct the elevated structure or tb connect their several railroads, except by due and lawful authority and in the manner provided in its charter; and also to have adjudged void a pretended permit issued by the defendant Keating, as cbmimissioner of .highways of the city of ¡New York, and by the defendant Farrell, as deputy commissioner of highways of the city of ¡New York, under which the defendant the Long Island Railroad Company and the defendant Uhl man, as receiver of the Brooklyn Elevated Railroad Company, claim .the right to erect the elevated structure and to connect their respective roads.
    
      Isaac M. Kapper, for the appellant.
    
      William J. Kelly, for the Long Island Railroad Company, respondent.
    
      Georcje W. Wingate, for the receiver of the Brooklyn Elevated Railroad Company, respondent.
   Willard Bartlett, J.:

I think that the order appealed from should be affirmed on the ground that the plaintiff failed to make out a case authorizing the court to restrain the proposed action of public officers at the instance of a taxpayer suing merely in that capacity.

The legislation designed to enable taxpayers to maintain suits to-prevent illegal official acts on the part of public officers, or to prevent the waste of public funds, was fully reviewed and its effect considered by the Court of Appeals in the case of Talcott v. City of Buffalo (125 N. Y. 280), and the conclusion was there reached that the right of a taxpayer to sue public officers is confined to cases “ where the acts complained of are without power, or where corruption, fraud or bad faith, amounting to fraud, is charged.” Thera has been no change in the statutes on the subject which affect this conclusion since that decision was rendered. (Code Civ. Proc. § 1925; § 1 of chap. 531 of the Laws of 1881, as amd. by chap. 301 of the Laws of 1892; 3 R. S. [9th ed.] 2530.) In the case of Ziegler v. Chapin (126 N. Y. 342) it is declared that the suit authorized by section 1925 of the Code is one which a taxpayer may bring against a public officer because of some fraud or bad faith on his part, or to restrain seme illegal action.” The theory upon which the present suit was brought is that the plaintiff, as a taxpayer, is entitled to maintain it to restrain the illegal official acts of the commissioner and deputy commissioner of highways of the-city of New Y orle in granting to the Long Island Railroad Company permission to open certain streets in the borough of Brooklyn for the purpose of building a turnout and foundations for elevated railroad columns therein.

It appears from the complaint arid papers, however, that these .officers had issued the permits in question more than a week before the commencement, of this action. .Whatever they had to do with the proposed erection of an elevated railroad structure on Atlantic avenue had been done already. There was no allegation in the complaint that these officers contemplated doing, or proposed to do, or had threatened to do, anything further. The plaintiff simply sought to avail himself of what he claims to have been their illegal action, in the past in granting these permits, as a basis for maintaining, in his capacity as a taxpayer, an injunction suit against the Long Island Railroad Company and the receiver of the Brooklyn Elevated Railroad Company, which he could not otherwise maintain. He does not. claim to be an abutting property owner specially injured by the erection of the elevated railroad structure on Atlantic avenue, but by making his suit in form a suit to restrain the alleged illegal official acts of public officers (although, in fact, the acts thus attacked have already been fully performed), he seeks to obtain á standing in court like that of a specially injured abutting property owner.

The legislation concerning taxpayers’ actions was not intended to break down the established rule that suits to restrain common nuisances can be maintained only by the public authorities, or by private persons who show that they have suffered, or are likely to suffer, special injury therefrom.

Here the only official action that could be the object of attack was completed before the suit was begun. Hence, it could! no longer be the subject of restraint — assuming it to have been illegal when performed and if there was no illegal official action • to restrain, there was no ground upon which the plaintiff, merely as á taxpayer could maintain this action as against the railroad companies.

Assuming that the railroad companies had not procured the permits which the plaintiff denounces as illegal, and had, nevertheless, .proceeded with the erection of the elevated railroad structure, the city, it is said, could have stepped in and stopped that. ■ Hence, it is argued in the brief for the appellant that if the city neglected to do so “ the taxpayer could restrain the erection of the illegal structure, and, by making the city and its officials parties defendant and demanding judgment, not only that the illegal encroachment be restrained, but that the city officials themselves be mandata rily restrained from permitting the illegal act to go on, bring about the same result by direct action in equity, which a. previous demand upon the city officials to step in and do their duty, followed by a mandamus to that end, would have accomplished.”

In the various enactments enabling taxpayers to prosecute public officers, I have not been able to find anything which sustains this view. In none of those statutes does the language warrant the conclusion that a taxpayer is authorized to bring an injunction suit against private persons or corporations upon the theory that a public officer ought to have brought such an action, and that upon his failure, to do so the taxpayer may step into his place and prosecute the same as plaintiff.

The questions involved in this litigation in regard to .the rights of the defendant railroad companies to the occupation ¡of Atlantic avenue are important; but-1 do not think we ought to express an opinion upon the merits in a case in which the plaintiff has failed to establish any right on his part, as a taxpayer, to maintain the action so far as the railroad companies are concerned.

I advise the affirmance of the order appealed from.

All concurred, except Cullen, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.

The following is the opinion written upon a motion fór a reargument of this appeal:

Pee Curiam :

The motion for reargument seems to be based upon the theory . that the permits which were issued were so issued without authority of law, and conferred no right whatever upon the defendants to make the erection upon which the complaint was based; and in support of this claim the defendants rely upon Ghee v. Northern Union Gas Co. (158 N. Y. 510). It is undoubtedly true that this decision settles the law that a franchise can only be granted by the municipal assembly, and that the authority conferred upon administrative officers has relation only to the supervision of the manner and method in which the work upon the public streets is to be performed. Assuming this to the fullest extent claimed by the appellant, such conclusion furnishes no ground for reargument in this case. In the discussion by the court in the opinion determining the question presented by the appellant, it was assumed that if such permits were in fact illegal and constituted no protection to the defendants, or conferred no authority to make the erection, yet the result would not be different for the reason that the plaintiff had no standing as a taxpayer to maintain the action; and this proceeded upon the theory that as the entry had already been made and the foundation laid in the streets, the case was not one in which the law recognized the right of intervention by a taxpayer, as the remedy was abundant, either by civil action on the part of the authorities or by indictment for the creation and maintenance of a nuisance. Consequently the Ghee case does not require a different determination than was expressed in the conclusion reached by the coutt.

The only change possible in this assumption is the claim by the appellant that the superstructure was not in fact erected at the time when the action was commenced,, and that, therefore, it may not be -said that the illegal action of which complaint is made had been -¡consummated. We do not think, however, that this changes the A’ule. It is not made to appear that 'the plaintiff suffers ¡any special •damage by reason of illegal acts. If illegal the structure constituted a nuisance common to the general public, and, therefore, vests -in the plaintiff no right .of action, as redress for such abt is to be ".found in a public prosecution on behalf of the general public, or in <an action instituted by a" person suffering special injury thereby.

It may. well he doubted whether the use made of the street, under the circumstances of this case, constituted the sainé a franchise therein; but upon this question it is not necessary to express any opinion.

We see no reason why a reargument of this case should be had, .and as the remedy for the abatement of the illegal structure is ample and complete in the public authorities, by well-settled proceedings .to abate the nuisance, no reason appears why an appeal to the Court <of Appeals should be permitted. ¡

The motion for a reargument should be denied.

.All concurred, except Cullen, J., not sitting. ' ¡

iMotion for reargument or leave to appeal to the Court of Apqieals denied.  