
    Winkler et al. v. Summers et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    January, 1889.)
    1. Municipal Corporations—Actions by Tax-Payers—Injunction.
    Under Laws N. Y. 1887, c. 673, which authorizes an injunction at the instance of tax-payers to prevent.the officers of a municipality from doing any illegal act, or from wasting_ the funds, etc., under their control, a city council will be enjoined from completing a contract for the purchase of a school-house site at a price greater by one-fourth than its value, at the highest estimate both of a large majority of the witnesses, and of those best qualified to decide; no apparent effort being made to obtain the land at a less price.
    A Same—Contracts.
    A verbal promise by the comptroller, acting under authority of the council, to take the land at the price asked, though followed by the delivery of a deed to the corporation counsel for examination, is not such a completion of the contract as to prevent the maintenance of an action to restrain its consummation.
    3. Same—Schools—Sewers.
    A city may supplement the insufficient area of a school-house site with land acquired for sewerage purposes, as the use of its surface as a school-house yard will not impair its usefulness for the original purpose.
    Appeal from special term, Erie county.
    Action by Franz X. Winkler and Frederick G-. Langner against William Summers, the president, and others, the members of the common council of the city of Buffalo, and the said city, to restrain the completion of a contract for the purchase of land for a school-house site. Judgment for plaintiffs. The following opinion was filed:
    “Daniels, J. This action has been brought by the plaintiffs, as tax-payers of the city, under the authority of chapter 673 of the Laws of 1887, to restrain the defendants and the city of Buffalo from taking title to a lot of land on Seneca street, at the corner of Hydraulic street, in the city of Buffalo, for the erection of a school-house. The lot proposed to be purchased by the city-for the price of @11,000 is in and of itself insufficient in size for the purposes-of the school building, but it is intended to supplement it in this respect by adding, for the uses of the children, an adjacent lot of land previously acquired by the city for the construction of a sewer. The rights of the city to appropriate in this manner any part of the land so obtained has been denied by the plaintiff, upon the ground that it was acquired for an entirely different purpose, and has become impressed with a trust requiring it to be devoted, to that purpose. The correctness of this position may very well be conceded’ for the disposition of the case, but the concession would not deprive the city of the right to use the land for the recreation of the scholars attending the-school, inasmuch as that can be done without impairing or disturbing, in the-least degree, the use for which the property was secured. The sewer itself, so far as it crosses a portion of the property, is, of course, under the surface of the ground, leaving the entire surface without obstruction in any form or manner whatever, and capable of being used for the object to which it is proposed to devote it, without entrenching in the least degree upon the trust to* which the property is acquired primarily to be applied, and where that may be done the fact that the property may have been obtained for a different purpose will not prevent the city from adding to that purpose an additional use of the property so far as it leaves the original design undisturbed an<^unimpaired. The action, consequently, cannot be maintained so far as it depends upon this objection. But a further objection is presented by the complaint, as well as by the evidence, to the purchase of this property for the erection of' a school building. It is stated to be seventy-nine feet and a fraction fronting-on Seneca street, and the evidence of six witnesses who are acquainted with the property, and so far as sales have been made with the prices produced by-property near the same vicinity, have put the value of this land at not to exceed from eighty-five to one hundred dollars afoot front; and these witnesses-agree in placing its value not to exceed one hundred dollars a foot, and they are sustained in the judgment expressed by them by the action of the assessors of the city, who assessed the piece of land in 1886 for the sum of $3,040.00, and the following year $3,240.00, the advance being made on account of a building erected upon the ground. Opposed to this evidence is the testimony of three witnesses, produced on the part of the defendants, who were engaged in the business of dealing in real estate. They have put the valuation of the land at from one hundred and twenty-five to one hundred and fifty dollars a. foot front; but their judgment, evidently, is not as reliable a guide concerning the value of the property as that of the witnesses who have testified upon the same subject on behalf of the plaintiffs, and who are acquainted with the-vicinity in which the property is situated, some of whom own property in its-immediate neighborhood, and are acquainted with sales which have there been, made. The evidence, accordingly, is not deemed to justify the conclusion that this property was worth any greater sum than the extreme limit mentioned by the witnesses on behalf of the plaintiffs, and that is the price of one hundred dollars a foot front upon Seneca street, which would bring the value-of this property up to the sum of $7,965, leaving a difference between its value- and the sum for which the comptroller of the city has agreed to take it of three thousand dollars. For a mere error in judgment, involving no greater-difference than might exist between persons purchasing property for themselves, the court would not be required to interfere and restrain the purchase under the statute, but for so large a difference as appears here the case requires to be otherwise considered. It involves an appropriation of a large sum of money belonging to the public, for which no equivalent is to be received by the city, and it is accordingly in all substantial respects the gift or donation of so much money to the person from whom the property is proposed. to be purchased. This the law will not permit. It requires the same fidelity, care, and caution on the part of the individual representing the public interests as would be expected to be used by an individual purchasing the like property for himself, and paying for it with his own money. In all public positions the law not only expects, but it exacts, this degree of care and fidelity from those representing public interests, and because these expectations have not always been realized, and the obligation has not been observed, that the statutes have been passed, allowing the tax-payers to institute suits in their own names to prevent the misappropriation of public moneys or public property. It has been found necessary, in addition to the obligations imposed upon public officials, to subject them to this restraint and oversight on the part of the tax-payers, not only to keep down their own expenditure and burden, but to exact from the officials a complete and careful discharge of the duties imposed upon them by the laws. For this purpose the law, as it now is in force, after having passed through several amendatory acts intending to render it more effectual and complete, has provided that all officers, agents, commissioners, and other persons, acting, or who have acted, for and on behalf of any county, town, village, or municipal corporation in this state, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners, or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds, or estate of such county, town, village, or municipal corporation, by any person whose assessment, or by any number of persons jointly, the sum of whose assessment shall amount to one thousand dollars, etc. The act, it will be seen, is sufficiently broad to include a case of this description, and, in considering a preceding law on the same subject, it has been held by the courts that this legislation should be construed with a reasonable degree of liberality. Ayers v. Lawrence, 59 N. Y. 192.
    “The law, as it has been enacted, not only permits the illegal act or illegal appropriation of public property to be restrained, but it permits, also, an action in favor of the tax-payers against the officials who may misappropriate public property or funds, to recover back the amount that may have beeen expended by means of their inattention or misconduct in the discharge of public duties, and the difference between the selling value of this property and the sum of $11,000 proposed to be paid for it appears sufficient to bring it not ■only within the reason and intent, but also within the language, of this statute. By the resolution of the common council, authorizing the comptroller to purchase the land on the south-east corner of Seneca and Hydraulic streets, he was directed to do so at an expense not to exceed $11,000, and upon the approval of the title deed by the corporation counsel. Ho effort whatever, as the proof has been given, was made to bring down the price below the utmost limit mentioned in the resolution, but all that transpired upon this subject was that the owner was asked the price he was willing to receive for the property. He reiterated what had before then been said, the sum of $11,000, and the comptroller, acting through his deputy, stated that it would be taken at that price. This is clearly very far from the course of proceeding which would have been taken by a purchaser for his own personal and private interest. Instead of acceding readily, and at once, to the price exacted by the owner of the property, an effort would have been made, under the circumstances here exhibited, to bring down the price to a more reasonable figure than that mentioned in the resolution, and, if that could not be done, the officer should have declined to take the property at the extreme price nominated by the owner. As much would be expected in a private purchase, and the same duty is enjoined upon and is expected from persons acting on behalf of the public in transactions of this description. It has been urged on behalf of the city and of the owner that the purchase had been so far completed as to prevent this action from being made effectual; but that is plainly a mistake, for the law requires, a contract for the purchase of real estate to be in writing, subscribed by the party who is to be charged for its performance, and that, in this instance, is the city. If the deed had been accepted, and the title had passed, the point presented would have been entirely different; but here it was not so. The common council did not accept the offer of the owner for the sale of the property, but con tided the duty to the comptroller, directing him to make the purchase, but at a price not to exceed eleven thousand dollars. Up to that time, as no price had been fixed, consequently, there was no contract of purchase on behalf of the city. The resolution was not such a contract, for the reason that it did not accept the terms of the owner of the property, but confided that to the comptroller, expecting, apparently, that the price would be less than this sum of eleven thousand dollars. The interviews between the deputy of the comptroller and the owner of the property did not comply with what the statute has required to make a binding agreement, for a mere verbal assent to taking the property at this price was not such a contract as the statute has required to bind either the purchaser or the seller. That is required to be in writing. There was no writing in this instance, but the deputy comptroller simply expressed his assent in words that the place would be taken at the sum of eleven thousand dollars. This was not binding either upon himself or the owner of the property, or upon the city, and the delivery of the deed to the corporation counsel to have it examined did not in any manner change the legal relation of these parties. The deed itself was never delivered to the city, or to any person .authorized to receive it on behalf of the city. The title, consequently, did not pass. The city was not bound by anything which had transpired to take the property, and as this action was brought when the transaction was in this condition it was in time to restrain it under the provisions of the statute. As it has been presented it should be so restrained, and judgment awarded in favor of the plaintiffs to-that effect, prohibiting the city from accepting the title to this property at the price proposed to be paid for it, and the plaintiff should also recover their costs in the action. The findings and conclusions will be settled on not less-than three days’ notice. ”
    Defendants appeal.
    
      William F. Worthington, for appellants. Tabor, Sheehan <& Coatsworth, for respondents.
   Per Curiam.

Judgment affirmed, with costs, on the opinion of Daniels, J., at special term.  