
    Robert McCrea, Resp’t, v. George Chahoon et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    1. Pleading—action by taxpayer.
    Action was brought by a taxpayer against the board of supervisors, the supervisor of a town, the collector of taxes, and against fourteen persons-having claims against the town. The complaint alleged that the claims were presented to the board of town audit, which rejected three because not itemized, and reduced the amounts of the others. That subsequently all these claims were presented to the board of supervisors, which allowed them at larger figures than the board of town audit had done. That thereafter the board had issued its warrant to the collector' to collect the taxes and pay them over to the supervisor, and that the amount of the warrant included the additional sums allowed upon the claims. That the assessmentroll delivered with the warrant contains a direction to the collector to pay the sums complained of, and that these sums are to be paid. And complaint asked an injunction against all the parties, and restitution, if any, of the amounts complained of paid or to be paid. On demurrer, Held, that the complaint stated a cause of action against all the defendants except the board of supervisors.
    2. Towns—audit op accounts.
    The board of supervisors and the board of town audit have concurrent jurisdiction to audit accounts against a town. But prior audit by the board of town audit is conclusive, and cannot be reviewed by the supervisors. Action by the latter changing the amounts is void.
    3. Restitution.
    2To case for restitution is made by the complaint.
    4. Pleading—Demurrer. 1
    A demurrer can be allowed for a defect of defendants, but not for an excess.
    5. Same—Parties.
    It was proper to make all the claimants parties in the same action. It would be oppressive to the collector and supervisor to bring many actions-against them, when the whole controversy can be determined in one equitable action.
    Appeal from an interlocutory judgment overruling demurrers to the complaint.
    This is an action brought by the plaintiff as a taxpayer of the town of Champlain in the county of Clinton, who has been assessed and has paid taxes within a year from the time of the commencement of the action in that town, such taxes being assessed upon an amount exceeding the sum of $100,- against the board of supervisors of said county, the supervisor and collector of taxes of said town and fourteen other persons, twelve of whom have separate accounts and claims, and two of whom jointly have an account and claim against said town, to annul an alleged illegal act on the part of said board, to prevent such act from being carried out by the supervisor and collector of taxes of said town and the receipt of the amount of such claim by the respective claimants.
    The complaint alleges that the several defendants, such claimants, had claims which were town charges only and not county charges. The amount of each claim being stated that such claims were respectively presented to the board of town audit of the town of Champlain and three of them were entirely rejected because not itemized, and the other ten were respectively only in part allowed and the balance rejected because, as alleged by the board, of audit, the goods furnished and the services performed, that made up the claims, were not worth more than the sum allowed.
    The complaint further alleges that these same claims were by the respective claimants presented to the said board of supervisors with the request to audit and allow them against said town of Champlain; that said board thereupon appointed a committee to examine and report upon said claims, and upon the coming in of the said report the said board resolved and directed that each of the said claimants be allowed sums in addition to the amount audited and allowed upon said respective claims by said board of audit of the town of Champlain, said several amounts being particularly specified in the complaint, and that said board of supervisors by such resolution directed that the said several amounts audited by it be substituted for the amount allowed on said claims by the said board of audit of the said town of Champlain, thereby allowing and auditing against said town of Champlain the sum of $426.10 illegally and without authority, and imposing said sum as a charge upon said town.
    That thereafter, and on or about the 9th day of December, 1887, the said board of supervisors, or a majority of them, issued their warrant to the defendant Napoleon Sansehagrin, the collector of taxes of the town of Champlain, commanding him to collect a large amount of taxes assessed upon said town, to wit, the sum of over $18,000, and pay over the same, or part of the same, to the defendant James Averill, Jr., as supervisor of the town of Champlain, for town charges assessed upon said town, including the said amount so by them illegally audited against said town.
    That the assessment roll of the said town, with the said warrant delivered to the said collector, contains a direction to said collector to pay over to the said claimants the amounts on their said respective claims allowed by the said board of town auditors, and the additional amounts allowed and audited by the said board of supervisors to said claimants, and that plaintiff has been informed by the defendant, the said supervisor of said town, that he expects to pay said claimants the amounts so additionally allowed out of the funds of, and the taxes upon, said town.
    The complaint prays the judgment of the court prohibiting and enjoining the said defendants, the said supervisor and the said collector of the town of Champlain, from paying over the amount so additionally allowed said claimants by said board of supervisors, or any other or greater sums than allowed them by the board of audit of said town of Champlain, and directing the restitution of said sums, if heretofore or hereafter paid said claimants, and for such further relief as by the law provided.
    The defendants constituting the board of supervisors demur to the complaint on the ground:
    
      First. That the complaint does not state facts sufficient to constitute a cause of action against them.
    
      Second. That causes of action have been improperly united. 11 These defendants should not be joined with all the other defendants named in one and the same action.” They should not "be joined with either of the defendants named as presenting claims for audit to said board of supervisors, and if with any one. of such defendants, then with only one. That several causes of action, one against each of the persons alleged to have presented claims, have been improperly united.
    Each of the defendants, such claimants, except Eveline Smith, and the defendants constituting the board of supervisors, demur to the complaint on the same grounds as first above stated, and second, that causes of action have been improperly joined; 'that such last named defendants should not be joined with the defendants named as constituting the board of supervisors of Clinton county ; that the defendants, such claimants, should not be joined together each with the other in one action; that if any cause of action is stated in the complaint against any of such claimants, defendants, a separate cause of action against each of the defendants alleged to have presented claims is stated, and it is improper to unite them in one action.
    
      S. A. Kellogg, for app’lts; Royal Corbin, for resp’t.
   Landon, J.

We think the complaint alleges a cause of action against the supervisor and collector of the town of Champlain and the several defendants in whose favor the board of supervisors audited the claims presented by them against the town, but we do not think that a cause of action is stated against the board of supervisors, nor that they are necessary or proper parties to the action.

The action is brought by a taxpayer to prevent waste or injury to the town of Champlain or its taxpayers. Code Civ. Pro., § 1925; chap. 673, Laws 1887.

The injury threatened is the payment by the collector to the supervisor and by the supervisor to the several claimants of the amounts respectively allowed to them and charged to the town of Champlain by the board of supervisors in excess of the amounts allowed by the board of town auditors upon their previous audit" of the same claims.

The board of town auditors and the board of supervisors of the county have concurrent jurisdiction to audit accounts chargeable against the town, except' in the cases in which the statute, chap. 58, Laws 1860, confers exclusive jurisdiction upon the board of town auditors. This exception is not here material. The board of town auditors are authorized by chap. 305, Laws 1840, tó audit and allow “ the account of all charges and claims payable by their respective towns.”

The board of supervisors are authorized “ to audit the accounts of town officers and other persons against their respective towns, and to direct the raising of such sums as may be necessary to defray the same.” 1 E. §., m. p. 367, § 4.

The prior audit by the board of town auditors is conclusive and cannot be reviewed or reversed by the board of supervisors. Osterhoudt v. Rigney, 98 N. Y., 222, 234. If fhe board of town auditors first acquire jurisdiction, that jurisdiction is full and complete, and tlieir action within their jurisdiction, so far as it goes, completes the matter, and if the board of supervisors subsequently act upon the matter they necessarily must limit their action to questions yet open, such as the inclusion of the amount in the tax levy.

Three of the accounts were rejected by the board of town auditors because “not itemized.” This was not a rejection upon the merits, but was conclusive against the accounts in the form in which they were presented to the board of town auditors. As the complaint is framed, it would be competent for the plaintiff to prove that the same accounts in the same form were presented to the board of supervisors. It doubtless would be competent for the claimants after the rejection of their bills because “ not itemized,” to reconstruct them and give the items, and thus give the board of supervisors jurisdiction. Osterhoudt v. Rigney, supra. But as it does not appear from the complaint that this was ■done, we cannot assume upon the demurrer that the board of supervisors had jurisdiction to audit these bills. If any issue can be made upon this subject it is an issue of fact, to be presented by the answer.

. We must assume, therefore, that the subsequent audit and allowance by the board of supervisors of the same claims and accounts previously passed upon by the board of town auditors was void

It was proper for the plaintiff to bring his action against such parties as it was needful to hear or to restrain in order to prevent the waste and injury about to be effected by the payment of the illegal appropriations ordered by the board of supervisors.

But the board of supervisors had completed their action in the premises, and neither threatened to do nor could do anything further. No preventive relief can be had against them. They have no interest in the subject matter of the action. Ch. 673, Laws of 1887, provides that where “ the waste or injury complained of consists in any board or officer, * * * by collusion or otherwise auditing, * * * or conniving at the audit, allowance or payment, of any fraudulent, illegal, unjust or inequitable claims ■* * * the court may * * * .adjudge and declare the colluding or defaulting official personally responsible therefor.”

This complaint does not allege any collusion or connivance on the part of the board of supervisors, and hence their good faith must be assumed, and although restitution is asked, the allegations of the complaint do not make a case requiring it.

The separate demurrer of the other defendants was properly overruled. The Code authorizes a demurrer for a defect of defendants, not for an excess. Section 488; Fish v. Hose, 59 How., 238. The fact that no case is stated against the board of supervisors does not avail the other defendants, provided there is a case stated against them.

It is urged that there is no joint case stated against the defendants in whose favor the audits were made; that each one is only interested in his own, and not in his co-defendant’s case. But ring is an equity action in which each claimant is interested in the single resolution of the board of supervisors in which all the audits are embraced and the audit of the board .of town auditors enlarged.

The plaintiff seeks to restrain the payment of the whole amount of the excessive audit, and therefore must make each person claiming a part thereof a party. It would be oppressive to the supervisor and collector to bring many actions against them when the whole controversy can be determined in one action. It is not perceived that any claimant can be embarrassed by the case of his co-defendant. The joinder of all the claimants seems to be authorized by §§ 447, 452, of the Code, and sanctioned by authority. Osterhoudt v. Board of Supervisors, 98 N. Y., 239; Latham v. Richards, 15 Hun, 129; Mahler v. Schmidt, 43 id., 512; 7 N. Y. State Rep., 159; Weeks v. Cornwall, 39 Hun, 643.

The interlocutory judgment is reversed as to the board of supervisors with costs and their demurrer allowed, with costs; it is affirmed as to the other defendants, with costs; with the usual leave to all parties to amend on payment of costs.

Learned, P. J., and Putnam, J., concur.  