
    James B. Gaffney, Individually and as the Commissioner of Public Works of the City of Saratoga Springs, Plaintiff, v. City of Saratoga Springs et al., Defendants.
    Supreme Court, Special Term, Saratoga County,
    December 26, 1967.
    
      
      David A. Wait, Gity Attorney, for defendants. Keniry & Keniry for plaintiff.
   Michael E. Sweeney, J.

This is a motion to dismiss the plaintiff’s complaint on the grounds that it does not state a cause of action, and secondly, that the plaintiff does not have a legal right to bring the action.

With neither of these contentions do I agree. As to the first ground, under our law, the plaintiff is entitled to every reasonable inference and the rules as to the sufficiency of complaints are liberally construed. Consequently, I must conclude the complaint does state a cause of action.

As to the second contention, at first glance it might appear that there is merit to defendants’ contention. Our courts have repeatedly held that a legislator cannot challenge an act of the legislative body of which he is a member. This rule, however, in my opinion, does not apply to the instant case. Here the plaintiff, the Commissioner of Public Works, has certain powers and duties. During his first two years of office the plaintiff has had supervision of sewage disposal. The act in question removes this function to a separate and independent department. Consequently, it is my conclusion that the plaintiff has a right to have this court determine whether this change in his duties has been legally effected. In other words, this plaintiff has the right to know whether he is administering his office properly.  