
    John D. O’Connor, Respondent, v. Michael J. Walsh, Mayor of the City of Yonkers, County of Westchester, New York, Appellant.
    
      Qommon council of the city of Yonkers—it had not power to authorize the employment of a page—an express authority is necessary—a bond given in a taxpayer’s action filed nunc pro tunc — costs, when allowed against public officers in a taxpayer’s action.
    
    The common council of the city of Yonkers had no power (there being no provision in the city charter [Laws of 1895, chap. 635] allowing them to do so) to-authorize the mayor of that city to employ and discharge at a salary of §100-per month, at his pleasure, a person to act as page of the common council and. assistant in the office of the mayor and assistant city clerk, his duties being to-attend the meetings of the various committees and of the common council,, and “to receive and deliver the resolutions of the members of the common-council, write up the minutes, and get and hand papers out, and get papers ready to be acted upon, and arrange them as general orders.”
    The common council of a municipality is without power to create offices and pay out the city’s money to their incumbents without an express provision of the-charter of such municipal corporation empowering that body to do so.
    Where the bond, served by the plaintiff in a taxpayer’s action at the time of the-commencement of the action, is defective, the court has power, after the trial and before the decision is signed, to make an order upon notice permitting the plaintiff to file a proper bond nunapn'o tunc.
    
    Public officers, who are made defendants in a taxpayer’s action, should not be charged with costs, unless it appears that they have acted with gross negligence, in bad faith or with malice.
    They should not be charged with costs where it appears that, in doing the illegal act in question, they simply did what their predecessors had done, without objection, for twelve years prior to the commencement of the action.
    Appeal by the defendant, Michael J. Walsh, mayor of the city of Yonkers, county of Westchester, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, restraining the defendant from signing certain warrants, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 8th day of October, 1902, allowing the plaintiff to file a bond nunc pro tu/nc.
    
    
      
      I. J. Beaudrias, for the appellant.
    
      John P. Flanigan and John D. O' Connor, for the respondent.
   Hooker, J.:

The complaint alleges that the plaintiff is a taxpayer in the city of Yonkers, a domestic municipal "corporation, and that the defendant is the mayor of that municipality; that one Elmer J. Craft holds the office of page to the common council, or assistant city clerk, in said city, and draws a salary of $1,200 per year, payable monthly, under an appointment by the defendant as mayor; that under the charter of the city of Yonkers no such office as page to the common council, or assistant city clerk, was provided for, and no authority was therein conferred upon the common council or mayor for the creation of said office; that each month since Craft’s appointment the mayor has signed a warrant or warrants for the payment of Craft’s salary or wages; that the signing of such warrants is and has been an illegal act on the part of the mayor; that Craft’s appointment is void and without authority of law; and the complaint demands judgment restraining and enjoining the defendant from recognizing Craft in any manner as page, or assistant city clerk, or signing warrants for any further sums belonging to the city of Yonkers as wages or salary under said appointment.

The matters of fact alleged in the complaint were proved, together with the additional facts that on the 26tli of May, 1890, the common council passed a resolution to the effect that the mayor be authorized to employ and at his pleasure to discharge a person to act as page of the common council, and assistant in the office of the mayor, and assistant city clerk, at a compensation of $o per week ; that later the salary was increased by the same authority to $100 per month, and that the duties of the person holding such office were “ to receive and deliver the resolutions of the members of the common council, write up the minutes, and get and hand papers out, and get papers ready to be acted uj>on, and arrange them as general orders; ” that it was necessary for the incumbent to be familiar with the city clerk’s office and the places where the papers are deposited, to attend the various meetings of the committees and of the common council.

The trial resulted in a judgment for the plaintiff, the court placing the decision upon the ground that the charter of the city of Yonkers (Laws of 1895, chap. 635, and acts amendatory thereof) confers no authority upon the mayor of such city to fill such office or position by appointment or otherwise, nor is any authority contained in the; charter for the creation of such office or position; the judgment awarded the costs and disbursements of the action against th& defendant, who appeals.

The appellant contends that the common council had ample power to employ a person to perform the duties that were rendered by the incumbent in this controversy, and cites Dillon on Municipal Corporations (4th ed. § 207) to the effect that it is supposed when not in contravention of the charter that municipal corporations may, to a limited extent, as incidental to expressed powers, have the right to create certain minor offices of a ministerial or executive nature. Title 2 of the charter of the city of Yonkers (Laws of 1895, chap. 635, amd. by Laws of 1901, chap. 316) treats of the officers of the city, their election, appointment and terms of office. Section 7 of that title, as amended, provides that “ The appointive officers of the city shall be a city clerk, a city attorney, a receiver of taxes, a city treasurer, a city auditor, a commission of public works, a commissioner of charities, an inspector of buildings, an assistant inspector of buildings, three assessors, five commissioners of public health, five park commissioners, four police commissioners, four fire commissioners, five water commissioners, seven constables, one or more pound keepers, and fifty commissioners of deeds. All of said officials shall be appointed by the mayor.” It is to be noted that nowhere in this category is to be found the position of page to the common council or assistant in the office of the mayor or city clerk. The 3d paragraph of that section, as amended, specifically provides the minimum and maximum amounts which the common council may fix as salaries attaching to most of the several appointive offices. The commissioner of charities, the inspector of buildings, and each assessor, as provided in that paragraph, shall receive no more than $1,500 and no less than $1,000 per year, and the common council is empowered to fix the salary of those officers at a figure in its discretion between those limits. The salary heretofore paid Craft has been $1,200 per year, and we cannot believe, even if the doctrine laid down by Dillon (supra) is correct,- that the office under consideration is a minor office of ministerial or executive nature, when its duties and the salary attached to it are compared with the general duties of the other officers enumerated in section 7, title 2 of the charter, as amended, and in connection with the salaries therein provided for.

it has long been held that the common council of a municipality is without power to create offices and pay out the city’s money to their incumbents without an express provision of the charter of such municipal corporation empowering that body to do so. (Hyde v. Auditor of Brooklyn, 21 How. Pr. 339; People ex rel. Russell v. Supervisors, 6 Hun, 304; Lyddy v. Long Island City, 104 N. Y. 218.)

The appellant urges that it was necessary for the proper administration of the affairs of the city and the proper preservation of its records, that the office under discussion be created and some person appointed to fill it, and that the city had inherent power to employ persons in such a capacity as vital to its existence. In the Lyddy Case (supra), however, the plaintiff had performed legal services at the request and upon the employment by the common council of the defendant, in the investigation of certain alleged abuses by its board of water commissioners in administering the affairs of the water department of the city. It was evident that it is quite as important for a city to have the administration of its water department conducted properly, and abuses therein corrected, as it is that meetings of its common council and committees thereof be attended, resolutions of the members delivered, minutes written up and papers in connection therewith prepared to be acted upon; but in that case the court held that under the charter of Long Island City, which did not empower the employment of an attorney outside of the law department for that or any other purpose, the defendant could not become legally bound to the plaintiff, and he was without remedy against it for his services. The conclusion of the learned court at Special Term, that the appointment of Craft was illegal, is correct.

On the trial a proper bond in taxpayers’ actions was shown not to have been served. After the trial and before the decision was signed, an order was made upon notice directing and permitting such a bond to be filed nune pro time, and the defendant- contends that because the bond had not been filed and served at the time of the trial the complaint should have heen dismissed. A bond which did not meet the requirements of the statute (Laws of 1881, chap. 531, as amd. by Laws of 1892, chap. 301) was served at the time of the commencement of the action, and, to cure the defect, the order permitting the bond to be filed was made. We think the order was proper. In Irwin v. Judd (20 Hun, 562) it was said : “ The power to amend an undertaking, defective even in matter of substance, is conferred by section 730 of the Code of Civil Procedure. This is obvious when we read this section in connection with section 729, and consider that, under the latter, an amendment of an undertaking defective in matter not of substance is unnecessary Sections 723 and 724 are also very broad in permitting amendments to cure mistakes, omissions, defects and irregularities. We think the amendment was properly allowed.”

The appellant also contends that there should be at least a modification of the judgment striking out the award of costs against the defendant. We think that the court should not have awarded costs against the defendant. (People ex rel. Niagara Falls Co. v. Russell, 57 Hun, 53; People ex rel. Lorillard v. Barker, 72 id. 637; People ex rel. Canaday v. Williams, 90 id. 501.) Unless it appears that public officers have acted with gross negligence, in bad faith, or with malice, costs should not be charged against them in proceedings or actions relating to their official duties. There is no .affirmative showing in this case to that effect. It appears on the-other hand, however, that the original appointment under the resolution of the common council in question was made nearly twelve years before this action was commenced, and that the salary had been paid regularly to the incumbents of the office since that time, without protest from any one, and without a question as ,to the validity of the appointment ever having been raised.

Under these circumstances the judgment should be modified by ■striking out its provisions in relation to costs, and as thus modified affirmed, without costs of this appeal.

Goodrich, P. J., Bartlett, Woodward and Hirschberg, JJ., concurred.

Judgment modified in accordance with opinion of Hooker, J., and as thus modified affirmed, without costs.  