
    WEST v. CITY OF UTICA et al.
    (Supreme Court, General Term, Fourth Department.
    September, 1893.)
    1. City Council—Illegal Expenditures.
    City aldermen, who have been convicted of contempt in disobeying an injunction, which conviction stands unreversed, cannot, by resolution, make the city liable for the expense of defending the contempt proceedings.
    
      3. Same—Injunction by Taxpayer.
    Under Code Civil Proc. § 1925, providing that a resident taxpayer may bring an action “to obtain a judgment preventing waste of or injury to the estate, funds or other property” of the city, such person may obtain an injunction to restrain aldermen and other city officers from illegally paying out city funds for the defense of some of their number in contempt proceedings, in pursuance of a previous resolution authorizing the employment of counsel for the purpose.
    3. Taxation ov Costs—Both table Action.
    In an action in equity, where each party succeeds as to a part of the matters in litigation, costs should not be allowed to either, as against the other.
    Appeal from, special term, Onondaga county.
    Action .by Joseph E. West against the city of Utica and Thomas Wheeler, mayor, and others, for an injunction. Prom a judgment fox-plaintiff, defendants appeal.
    Modified.
    The judgment was entered in Onondaga county on the 12th of December, 1892, and amended by an order entered the 7th of January, 1893, upon a decision made at special term. In the conclusions of law stated by the special term are found the following: “That the passage of the resolution of August 31, 1892, on the subject of employing counsel, and its repassage over the mayor’s veto, did not bind the city, in any way or sum whatever, for the defense of said eight aldermen in said contempt proceedings in which they were convicted. That the attempt to bind the city was an illegal official act. (31 That the plaintiff is entitled to a judgment against the defendants herein, perpetually restraining them, and each of them, ‘from auditing, allowing, ordering paid, drawing a warrant, or signing or countersigning or paying any warrant for any sum whatever for the payment of the costs, expenses, or counsel fees or charges of or for the defense of said eight aldermen, Daniel McGucken, * * * or any of them, against their contempt in violating the said injunction of this court, which they voted for themselves August 31, 1892, and again September 27,1892, or about those dates.”
    Argued before HARDEN, P. J., and MERWTN, J.
    Josiah Perry, A M. Beardsley, and Matteson & De Angel'is, for appellants.
    O. D. Adams, for respondent.
   HARDEST, P. J.

Plaintiff is a taxpayer in the city of Utica, upon an assessment of more than $1,000, and brings this action “to obtain a judgment preventing waste of or injury to the estate, funds, or other property of” the city of Utica. See section 1925 of the Code of Civil Procedure. This section was intended “to protect against the fraud or bad faith of the officer, or to restrain illegal action on his part.” Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. Rep. 471. After proceedings were taken against eight of the aldermen of the city to punish them for contempt in violating an injunction order of this court, by a vote of 8 of the 12 aldermen a resolution was passed August 31, 1892, that counsel be employed for their defense in said contempt proceedings, and the resolution was in the following language:

“Resolved, that a committee consisting of the president of the common council and two aldermen be appointed, with power to employ suitable counsel to defend the proceedings in contempt instituted by the service of papers on the nresident. Daniel McGucken.”

It is found by the special term that after the mayor had vetoed the resolution, and after the aldermen were convicted of contempt, the resolution was again passed September 27, 1892, over me veto, by the same vote, the said aldermen having two-thirds of the ■votes of the council. Although it was assumed at the trial, as well as upon the argument of the appeal before us, that counsel, in pursuance of the resolution, were employed, it is found as a fact by the special term “that no bill or claim has ever been presented to the common council, or to the city of Utica, for any services, costs, or counsel fees, or charges in the matter of said contempt proceedings, or in the defense thereof;” and it is also found that no bill has been audited or warrant drawn therefor in payment of costs, expenses, counsel fees, or charges “in the defense of said contempt proceedings, or of said eight aldermen, and they have not undertaken or attempted any such thing or act.” And it was found as a conclusion of law by the special term that the plaintiff is entitled to judgment “perpetually restraining them, and each of them, from auditing, allowing, ordering paid, drawing a warrant, or signing or countersigning or paying any warrant for any sum whatever for the payment of the costs, expenses, or counsel fees or charges of or for the defense of said eight aldermen, Daniel McG-ucken, * or any of them, against their contempt in violating the said injunction of this court, which they voted for themselves August 31, 1892, and again September 27, 1892, or about those dates.” Our attention is called by the appellants to Powell v. Trustees, 19 Johns. 283, which came before the court upon facts “agreed to by the parties.” In that case the trustees of the village were sued for an act done by them in virtue of their office, “in the faithful discharge of their duty as trustees and agents of the corporation,” and for the necessary costs and charges in and about their defense they sought to recover; and, in closing the opinion in that case, Spencer, O. J., said: “They acted faithfully and without fault, and are entitled to recover for everything reasonably and necessarily disbursed in and about their defense. * * * We think the case is quite distinguishable from the one before us. When the special term was called upon to make its decision the eight aldermen had been, by an order of this court, adjudged guilty of contempt. The effect of the contempt proceedings brought to the attention of the special term was to indicate a want of good faith on the part of the eight aldermen, and by reason of that violation of the injunction order—their contemptuous act—the proceedings were taken. Our attention is directed to McCredie v. City of Buffalo, 2 How. Pr. (N. S.) 336, which is a case where an officer incurred expenses in establishing his right to the office. The case is quite unlike the one before us, and, in the course of the opinion delivered in that case, it was said, “It is an established rule that a municipal corporation may indemnify its officers and agents for expenses necessarily incurred in the bona fide discharge of their duties,” and cases are cited to support that proposition. See opinion, page 340. In the case before us the decision at special term proceeds upon the ground that the eight aldermen, being in contempt of court, and violating its order, were not acting in good faith, or “'in the bona fide discharge of their duties.” The case stated, therefore, does, not aid the appellants. In Board of Sup’rs v. Ellis, 59 N. Y. 620, it was held that a board of supervisors has no power to audit and allow accounts not legally chargeable to their county; and it was further held in that case that the board “cannot lawfully engage a county in, or bind it to the payment .of the expenses of, a litigation by an individual to establish his right to an office, and the audit and payment thereof is unlawful.” We think the special term was warranted in reaching the conclusion that the common council had no power or authority to use the funds, or the machinery to reach funds, of the city, to discharge any indebtedness arising on the part of the- eight, aldermen for their counsel in their defense against proceedings for contempt, which proceedings resulted in an adjudication by the court that the eight aldermen violated an order of the court, and were therefore guilty of the alleged conteimyh The learned judge who held the special term, in an opinion delivered, ■expressed himself as follows:

“The employment of counsel pursuant to a resolution of the common cduncil waS> a contract in behalf of the city, and, if valid, rendered it liable to pay a reasonable compensation to the gentlemen employed for such services as they should render. It must be presumed from the judgment of conviction that the eight aldermen were guilty of contempt, and lawfully punished. Their action, therefore, in employing counsel in the! name of the city, was an attempt to make the city liable for their own obligations, because the city is not bound to pay the expenses of defending an illegal act of its officers, even if purporting to be done in its behalf. As the evidence stands before me, therefore, with the judgment of conviction unreversed, their action was unauthorized and illegal.”

.We find no occasion to differ from the "views expressed by the leárned trial judge. Although "it did not appear at the special term that any claim or bill for services of the counsel who acted in defense of the eight aldermen had ever been presented to the common council, allowed, and audited, yet, upon the evidence found in the vase made at the special term, and the papers therein referred to, It is quite obvious that valuable services were performed after the passage of the resolution, and that those services had not been paid for; and the inference is justified that it was the expectation of the eight defendants that such services would be presented to the common council for payment, and perhaps it is not unreasonable to suppose that the counsel who performed those services expected that they would be paid in the manner suggested. It was not improper for the trial court to declare the employment of counsel not binding upon the city, and that its funds were not liable therefor. In dealing with the situation, and the several acts of the eight aldermen, the trial judge, in his opinion, said:

“Their action is in the nature of a threat to waste the funds of the city, by paying them out for services rendered in defending themselves against a charge of personal misconduct, of which they were guilty. I think that the plaintiff is entitled to a permanent injunction restraining the defendants from auditing, allowing, or paying, out of moneys belonging to the city, any part of the expenses incurred by employing counsel to defend the contempt proceedings. * * *”

2. It is insisted that the special term erred “in awarding costs of this action against the aldermen who were convicted of contempt.” This action was brought on the equity side of the court; and the rule regulating costs is found in section 3230 of the Code of Civil Procedure, which provides that in such an action as this “the court may, in its discretion, award costs to any party, upon the rendering of a final judgment.” In considering the question whether the discretion was properly exercised or not, regard must be had to the circumstances attending the other branch of the case which was presented to the special term. In the plaintiff’s complaint, facts were stated upon which the plaintiff asked a perpetual injunction against the defendants—

“From extending, or in any way or manner attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $50,000 for paving work in the city of Utica for the year 1892, beyond $6,000, as any part of any tax against any taxpayer or any taxable property in the city of Utica, or any ward therein. Also, from causing, suffering, or permitting, or attempting to do so, any tax for said sum of $50,000, beyond $6,000, to go into or upon the tax lists of said city, for any ward therein, against any taxpayer or taxable property. Said officers, respectively, shall neither sign nor deliver any assessment roll or tax list with any such tax in it. From extending, or in any manner or way attempting to extend, or causing or suffering to be extended, upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $8,000 for or on account of building the Twelfth ward schoolhouse in the city of Utica, or any part of any tax against any taxpayer or any taxable property in the city of Utica, or any ward therein. Also from causing, suffering, or permitting, or attempting to do so, any tax for said sum of $8,000 to go into or upon the tax lists of said city, for any ward therein, against any taxpayer or taxable property. Said officers, respectively, shall neither sign nor deliver any assessment roll .or tax list with any such tax in it.”

The special term refused to grant the prayer, in that regard, and under its decision a judgment has been entered to the effect that the plaintiff is not entitled to the relief asked for in the language quoted. In Law v. McDonald, 9 Hun, 23, it was held as follows: “Where, in an action in equity, each party succeeds as to a part of the matters in litigation between them, costs are not allowed to either as against the other;” and in that case the judgment appealed from was “modified so as to stand without costs to either party, as against the other.” A similar rule was laid down in Crippen v. Heermance, 9 Paige, 211; McCulloch v. Vibbard, (Sup.) 1 N. Y. Supp. 610; Ten Eyck v. Holmes, 3 Sandf. Ch. 428; Couch v. Millard, 41 Hun, 215. In Rosa v. Jenkins, 31 Hun, 384, it was held by this court that the discretion exercised in an equity action, as to costs, may be reviewed here. Rundle v. Allison, 34 N. Y. 185, contains nothing inconsistent with the rules already stated. We thmk +h > judgment should be modified, so far as ‘it awards costs against the defendants, and a clause inserted therein to the effect that neither party shall recover costs against the other; and, as so modified, we think it should he affirmed, without costs of this appeal to either party. Judgment modified as stated in the opinion, and as modified affirmed, without costs of the appeal to either party.  