
    Robert Govers, Appellant, v. The Board of Supervisors of Westchester County and The Town of Pelham, Respondents.
    
      Power of the supervisors to establish the boundary line between the towns of New Boehelle and Pelham — a taxpayer cannot sue to prevent the recognition of a line so established — effect of chapter 782 of tJie Laws of 1870.
    Chapter 782 of the Laws of 1870, providing that “the boundary line dividing the towns of New Rochelle and Pelham, in the county of Westchester, being the northeast boundary of Pelham and the southwest boundary of New Rochelle, is hereby fixed, established and settled in accordance with, and as laid down upon the map made by Captain Bond, in the year seventeen hundred and eleven,” etc., did not operate to repeal pro tanto chapter 361 of the Laws of ■ 1870, re-enacted in section 36 of the County Law (Laws of 1892, chap. 686), conferring upon boards of supervisors the power “ to fix, establish, locate and define disputed boundary lines between the several towns in their respective counties.”
    A line surveyed in 1872, by surveyors employed by the supervisors of the two towns to run the boundary line as established by the Legislature, was acquiesced in by both towns until the year 1897, when the .town of Pelham, claiming that the line had been erroneously located, applied under section 36 of the County Law to the board of supervisors to define the correct line as established by the - legislative act, in pursuance of which the board of supervisors, acting in good faith, without, fraud or collusion, .established a line different from the one surveyed in 1872, which, transferred to the town of Pelham fifty acres of land formerly in the town of New Rochelle.
    
      Eeldj that a taxpayer of the town of New Rochelle could not maintain an action-under the Taxpayers’ Acts (Laws of 1881, chap. 531; Laws of 1887, chap. 673; Laws of 1892, chap. 301; Code Civ. Proc. § 1925) to prevent the town of Pelham from exercising jurisdiction over the fifty acres in question;
    That the acts complained of did not constitute waste of the property of the town of New Rochelle, or injury thereto, within the' meaning of the Taxpayers’ Acts and were not within the mischief which those acts were intended to remedy.
    Appeal by the plaintiff, Robert Govers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the-20th day of March, 1900, upon the decision of' the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits. ■ •
    
      J. Addison Young, for the appellant.
    
      Henry G. K. Heath, for the respondents.
   Hirschberg, J.:

The plaintiff as a taxpayer of the town of Hew Rochelle in Westchester county has sued the board of supervisors of said county and the town of Pelham for the purpose of obtaining a judgment declaring null and void an act of said board passed March 16,1898, defining the boundary line between the towns of Pelham and Hew Rochelle. The action is brought under the provisions of the act for the protection of taxpayers (Chap. 531, Laws of 1881, as amended by chap. 673, Laws of 1887, and chap. 301, Laws of 1892) and section 1925 of the Code of Civil Procedure, and the judgment prayed • for includes the prohibition ¿f the town of Pelham from exercising any acts of jurisdiction over about fifty acres of land which the plaintiff claims have been unlawfully taken from the town of Hew Rochelle and annexed to the town of Pelham by the official action of the board of supervisors complained of.

It appears that the boundary line between these towns had been in dispute for many years. In 1870, by chapter 782 of the Laws of that year, the Legislature enacted that “ the boundary line dividing the towns of Hew Rochelle and Pelham, in the county of Westchester, being the northeast boundary of Pelham and the southwest boundary of Hew Rochelle, is hereby fixed, established and settled in accordance with, and as laid down upon, the map made by Captain Bond in the year seventeen hundred and eleven, and on file in the town clerk’s office in the town of Hew Rochelle, and as laid down on a copy of the said map made by James Davenport in seventeen hundred and ninety-eight, and now on file in the office of the State Engineer and Surveyor.”

At the same session of the Legislature, and some days prior to the passage of this act, chapter 361 of the Laws of 1870 was enacted, conferring for the first time upon boards of supervisors the powér “ to fix, establish, locate and define disputed boundary lines between the several towns in their respective counties, by a resolution to be' duly passed by a majority of all the members elected to such board.” This provision was re-enacted in section 36 of the County Law (Chap. 686, Laws of 1892) under the heading Establishment of disputed lines.”

In the year 1872 the supervisors of the towns of Pelham and Hew Rochelle employed surveyors to run the line of the boundary as established by the Legislature, and the line as located by such surveyors was marked by monuments and a map of the survey filed in the office of the register of the county. It was admitted on the trial that this was done under the authority, and by the direction, of the towns, and that, the work was accepted and paid for by them. The result arrived at by the surveyors appears to have been acquiesced in by both towns until the year 1897, when the town of Pelham objected to the line, claiming that it had been erroneously located, and applied, under section 36 of the County Law, to the board of supervisors to define the correct line as established by the legislative act.

Considerable evidence was received by the board of supervisors bearing on the question of the true location of the,boundary line as laid down on Captain Bond’s map and J ames Davenport’s copy. It was conceded that the surveyors acting for the towns had not seen or used the Davenport copy in any way, and if the result reached by the board of supervisors in adopting a different line from that of these surveyors were the subject of review upon the merits, the action of the board would be found to be supported by adequate proof.

The appellant insists, however, that the action of the board was wholly without jurisdiction, and this claim is based ón the contention that the special act of the Legislature establishing the boundary line in question repealed pro tanto the power previously conferred upon supervisors to fix disputed boundary lines, and that section 36 of the County Law was but a continuation of the prior law as so qualifiedly repealed and not a new enactment. If there is any repeal of the act conferring the power upon supervisors to define the disputed line, it must be by implication resulting from a conflict or inconsistency. But there is no inconsistency involved. The act of the Legislature establishing and settling the boundary line between the two towns did not purport to locate the line or to declare its bounds, courses and monuments. It "fixed, established and settled the line in accordance with certain maps, but it did not determine the actual physical location which would be in accordance with such maps. ' If that location was in dispute, that is, if there was a dispute as to where the line laid down on those maps actually ran, the power remained in the board of supervisors to “ locate and define ” it by virtue of chapter 361 of the Laws of 1870, although they could only ■“ locate and define ” it as established and settled by the special act. And, in the exercise of this power, the board was required to adopt .a resolution which should contain the courses, distances and fixed .monuments specified in such boundary line or lines, together with a map of the survey thereof, with the courses, distances and fixed monuments referred to therein plainly and distinctly marked and indicated thereon.” The location of the line in question undoubtedly required the exercise of skill and the examination of evidence in addition to that afforded hy the maps in order to determine its whereabouts, and it would seem that, instead of being without jurisdiction because of conflict or inconsistency, the action of the board of supervisors was a necessary supplement to the act of the Legislature, without winch the latter would have been destitute of practical efficiency.

Having jurisdiction in the premises, and having acted in its exercise in good faith, without fraud or collusion, the conclusion reached by the board is not subject to review by the court in this action. If the action of the board is to be regarded as judicial in its nature, it could not be reviewed excepting through the operation of some .appropriate writ of review. If the action was legislative, as the appellant contends, then it was not such legislation as is within the contemplation of the Taxpayers’ Act and section 1925 of the Code. In view of the adoption of a line by the towns in 1872, the-action of the board in substituting a different line may have been unwise or ■even erroneous, but it would not be illegal within the meaning of the Taxpayers’ Act, nor would the transfer of fifty acres of land from the town of Hew Rochelle to the town of Pelham under the circumstances disclosed by the record, free from any taint of fraud, collusion or corruption, constitute waste or injury to -or of the property of the former town within the meaning of that act or of the Code. In Talcott v. City of Buffalo (125 N. Y. 280) it was held that the right of a taxpayer to sue public officers pursuant to the legislation designed to prevent illegal official acts or the waste of public funds is confined to cases “ where the acts complained of are without power or where corruption, fraud or bad faith, amounting to fraud, is charged.” In Ziegler v. Chapin (126 N. Y. 342) it was 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 some illegal action.” See, also, Osterhoudt v. Rigney (98 N. Y. 222), where it ' was- held that an excessive allowance by a board of town audit in a case within its' jurisdiction, in the absence of fraud or collusion, does not constitute waste or injury to the property of the town within the meaning of the Taxpayers’ Act, and that an erroneous conclusion cannot be reviewed in the action authorized by such act.

The appellant cites People ex rel. Trustees v. Board of Supervisors (131 N. Y. 468), and People ex rel. O'Connor v. Supervisors (153 id. 370), as authorities for the maintenance of this action. In the former case the action of the supervisors providing for the raising of $400,000 by bonding the town was assailed as illegal and unauthorized by law, and was unquestionably within the mischief which the Taxpayers’ Act. was designed to remedy. In the O'Connor case the action of the board of supervisors complained of was in establishing a fire district in a town; and while the court intimated that a taxpayers’ action was the appropriate remedy for a review of the proceedings, it was manifest that the validity of the action of the board was attacked by the relator. It was an official act which was inherently illegal, and not merely erroneous because of errors of judgment.

In the case at bar the action of the board of supervisors was not invalid, illegal or without jurisdiction. It was free from fraud, collusion or corruption, and resulted in no waste of public funds or property, and no error of judgment on the part of the board in arriving at. its determination, if any existed, can be made the subject of review in a taxpayer’s action.

The judgment should be affirmed.

All concurred.

Judgment affirmed,-with costs.  