
    (73 Misc. Rep. 573.)
    WHITBECK et al. v. HOOKER et al., State Highway Com’rs.
    (Supreme Court, Special Term, Albany County.
    October, 1911.)
    States (§ 168%)—Remedies of Taxpayers—Injunction—Acts of Public Officers.
    A taxpayer cannot maintain an action to enjoin the board of highway commissioners of the state from entering into a contract for the construction of a state highway.
    [Ed. Note.—For other cases, see States, Dec. Dig. g 168%.*]
    Application by Peter M. Whitbeck and others for an injunction against S. Percy Hooker and others, as State Highway Commissioners.
    Application denied.
    Ramsdale & Church, for plaintiffs.
    Thomas Carmody, Atty. Gen. (Irving D. Vann, of counsel), for defendants..
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   RUDD, J.

The return of an order to show cause, granted upon the application of the plaintiffs, why an injunction pendente lite against the State Board of Highway Commissioners should not be granted, restraining said board from entering into a contract covering the construction of the state highway, which is part of route 36, consisting of 2.24 miles of highway in the town of Murray Orleans county.

The papers do not, in my opinion, justify the granting of the injunction pending the determination of this action. I am not satisfied that there is a serious question or doubt as to the legality of the act of the highway commission, so far as the laying out of the route is concerned. The change of route from what was originally contemplated, or at least considered, is an indication that the commission was endeavoring to secure that which under all of the circumstances would be best for the traveling public. In the route finally adopted, it seems that two railroad crossings at grade are avoided. That is desirable.

Aside, however, from the merits, I am of the opinion that I am bound by the determination of this court in Long v. Johnson, 70 Misc. Rep. 308, 127 N. Y. Supp. 756. It was there held that a taxpayer’s action, such as this one, cannot be maintained to enjoin a state commission, consisting of state officers, appointed by the Governor to construct a prison plant. If such a commission could not be restrained in a taxpayer’s action, for the reason that that action only goes to test the acts of municipal bodies, including counties and tovhis, then it would be applicable here. °

An order may be entered, denying the motion for an injunction pendente lite, with $10 costs to abide the event.

Motion denied, with $10 costs to abide event.  