
    Jessie Taylor, a Taxpayer of the City of New York, Appellant, v. George J. Ryan and Others, Constituting the Board of Education of the City of New York; Walter C. Martin, as Superintendent of School Buildings of the Board of Education of the City of New York, and The Board of Education of the City of New York, Respondents.
    First Department,
    April 14, 1938.
    
      
      Burgess Osterhout of counsel [John W. Simpson, 2d, and Hyler Connell with him on the brief; Gleason, McLanahan, Merritt & Ingraham, attorneys], for the appellant.
    
      Alan M. Stroock of counsel [Paxton Blair and Nelson Rosenbaum with him on the brief; William C. Chanler, Corporation Counsel, attorney], for the respondents.
   Per Curiam.

Assuming, without conceding or deciding, that the record discloses a fixed policy of rejecting bids from individuals or concerns maintaining so-called open shops, and that such a fixed general policy would be illegal, evidence to justify a judgment in favor of the plaintiff is lacking. It is well settled that, in a taxpayer’s action of this nature, proof of mere illegality is insufficient. There must be shown not only illegal action but one “ in some way injurious to municipal and public interests ” which, if permitted to continue * * * will in some manner result in increased burdens upon and dangers and disadvantages to the municipality and to the interests represented by it and so to those who are taxpayers.” (Western New York Water Company v. City of Bufalo, 242 N. Y. 202, 207; Campbell v. City of New York, 244 id. 317, 330.) Here, as stated by the trial justice, the rejection of bids was done in good faith by responsible officials vested with and in the exercise of, a proper discretion, and, as it seems to us, to avoid increased burdens and threatened dangers to the municipality.

It follows, therefore, that the judgment appealed from should be affirmed, with costs.

Present — Martin, P. J., O’Malley, Cohn and Callahan, JJ.; Martin, P. J., dissents.

Judgment affirmed, with costs.  