
    ROOSEVELT a. DRAPER.
    
      Supreme Court, First District;
    
    
      General Term, May, 1858.
    Cause of Action.—Tax-payee’s Injunction.
    An individual resident and tax-payer of a municipal corporation, or creditor holding its stock, payment of which is not yet due, cannot maintain an action against the corporation and its grantee to avoid a sale and conveyance of real estate, illegally or improvidently made by it.
    
    The only action sustainable in such case is one by the attorney-general.
    One person cannot sustain a civil action for an injury of a public nature, when the damage he sustains is no greater than that sustained by every other member of the community.
    Demurrer to complaint.
    This action was brought by an individual plaintiff, describing himself as a resident, tax-payer, citizen, and creditor of the city of If ew York, against Joseph B. Varnum, Simeon Draper, Robert B. Coleman, and the Mayor, Aldermen, and Commonalty of the city of Blew York. The object of the action was to obtain the cancellation of a grant- of land and land under water, executed by the corporate authorities upon a sale for valuable consideration to the defendant Varnum. The defendant Coleman was made a party as subsequent grantee of an undivided half of the premises in question. The defendant Draper was made a party upon an allegation of a direct or indirect interest in the property or its profits.
    
      The complaint was as follows:—
    Title of the Cause.
    Cornelius V. S. Roosevelt, plaintiff, on behalf of himself and of all interested, respectfully shows, that he is now, and has been for many years, a resident and tax-payer in the city of Rew York, owning and paying taxes on real and personal property, situated therein, and that he is a citizen of the city and State of Rew York, and of the United States.
    That the city of Rew York is incorporated by various acts of the Legislature, and charters, by the corporate name of the Mayor, Aldermen, and Commonalty of the city of Rew York, and as a corporation has certain legislative powers. That said corporation, with the assent of the State Legislature, has borrowed money from time to time, and issued stock therefor, and is now liable to pay a portion of the debt so created. That the plaintiff, in common with other inhabitants, is taxed for the purpose, among other things, of redeeming the city debt, and paying interest thereon; that the plaintiff is also holder and owner of a portion of the city stock, created as aforesaid, representing more than a hundred dollars of said debt, payable by the city, with annual interest, and the plaintiff is to this extent a creditor of said corporation.
    And the plaintiff further shows, that on or about the 22d day of February, 1844, the said corporation, in the exercise of its legislative powers, passed an ordinance creating a sinking fund for the redemption of the city debt, or stock, and the payment of interest, appropriating and pledging, among other things, the net proceeds of all real estate belonging to the city, for the redemption of the principal of said debt, and appropriating and pledging, among other things, the interest accruing on all bonds and mortgages belonging to the city, for the payment of the interest of said debt.
    That by said ordinance, the management of the sinking fund was intrusted to certain officers, being the mayor, comptroller, and treasurer of said city, the chairman of the finance committee of the Board of Aldermen, and the chairman of the finance committee of the Board of Assistant Aldermen, for the time being, who collectively are designated by the general name of the Commissioners of the Sinking Fund of the city of Rew York; and it was provided that s&id commissioners might sell real estate belonging to the corporation, and not in use for, or reserved for public purposes, at public auction, at such time and on such terms as they might deem most advantageous for the public interest; that at least twenty days’ previous notice of the time and place of such sale, including a description of the property to be sold, should be given, by publication in each of the newspapers employed by the corporation, and that no real estate not under lease should be sold for a less sum than the same might be appraised at by the commissioners of the sinking fund, and the street commissioner, or a majority of them, at a meeting to be held, and an appraisement made, within one month prior to the date of sale. It was by said ordinance also provided, that no grant should be made by virtue thereof, except for a specific consideration to be paid in cash, or in five annual installments, secured by bond and mortgage on the premises granted, with annual interest at the rate of seven per cent, per annum, the first installment to be paid on the issuing of the grant.
    And the plaintiff further shows, that the existing charter of the city, as amended in 1849, appears to have changed, in some respects, the executive control of the city finances, but that by an act of the State Legislature of the State of ETew York, passed June 20, 1851, to enable said corporation to increase its debt, it was, among other'things,, enacted, that the ordinance of 1844 should not be amended by the corporation in its legislative capacity, without the consent of tire Legislature, except by appropriating additional revenue to said sinking fund, and that said ordinance should remain in full force until the whole of the debt created by virtue of the act, entitled “ An Act creating a Public Fund or Stock, in the City of ETew York, to be called the Croton Water Stock, and in relation to the Sinking Fund of said City,” passed May 13, 1845, and by virtue of the act of 1851, should be fully redeemed.
    And the plaintiff further shows, that the stock created by the last-named acts has not been fully redeemed; but, nevertheless, the said corporation, disregarding the provisions of said amended charter of 1849, and of said act of the Legislature of 1851, and assuming, without the consent of the State Legislature, to act in their legislative capacity, passed a resolution, adopted by the Board of Aldermen on the 8th of December, by-the Assistant Aldermen on the 10th, and approved by the Mayor on the 20th of December, in the year 1852, which resolution is in the following words: Resolved, that the land to be made on the ¡North River, with the bulkhead between Gansevoort and Twelfth streets, be sold to D. R. Martin, or any other applicant for the purchase thereof; and that it be referred to the commissioners of the sinking fund to fix the terms and price, the proceeds of which to be paid into the sinking fund for the redemption of the city debt.
    And the plaintiff further shows, that the land referred to in said resolution was the property of said corporation, not in use for, or reserved for, public purposes, and was pledged to the redemption of the city debts.
    That, as plaintiff is informed and believes, various grants of soil under water have been made to the said corporation by the original charter of the city, and by successive acts of the Legislature of the State; subject, however, to the right of pre-emption of adjacent owners; and that the land referred to in said resolution is part of the said soil under water. That, prior to 1844, the United States of America became seized of the upland, next adjacent to the easterly boundary line of the land under water sold to defendant, Varnum, as referred to in said resolution, and hereinafter stated; but that the right of pre-emption has never been exercised as to said land under water; and that the said United States of America, by deed dated October 12, 1850, granted and conveyed the said upland to the said corporation in fee simple. And the plaintiff prays leave to refer at large to the original charter and to the acts of the Legislature above mentioned, viz.: to an act entitled “ An Act relative to improvements touching the laying out of streets and roads in the City of ¡New York, and for other purposes,” passed April 3, 1807. Also to the “ Act relative to improvements in the City of ¡New York,” passed February 25, 1826 ; and also to the act entitled “ An Act to establish a permanent exterior street or avenue in the City of ¡New York, along the easterly shore of the ¡North or Hudson River, and for other purposes,” passed April 12, 1837.
    That, nevertheless, the mayor, recorder, chamberlain, and other officers, named in the ordinance of 1844, as commissioners of the sinking fund, held meetings, as plaintiff is informed and believes, for the purpose of complying with said resolution; and a majority of such officers, at a meeting held December 24, 1852, in violation of the ordinance of 1844, adopted a resolution, fixing the terms of sale as follows: Twenty-five per cent, of the purchase money to be paid on the delivery of the deed, the balance to remain on bond and mortgage for five years, with interest at the rate of six per cent, per annum, payable semiannually ; the mortgage to contain the usual clause, providing that the principal shall become due in case the interest remains unpaid sixty days after the same is due; and the grant or deed to contain a covenant, guaranteeing to the corporation the privilege of depositing on said premises, coal ashes from the 5th, 8th, 9th, 15th, and 16th Wards, until said premises are filled in: that, as plaintiff is informed and believes, there was no report made in the course of the proceedings by the street commissioner and comptroller, of the sum which, in their judgment, should be paid for the grant of the land under water: that, as plaintiff is informed and believes, there was no appraisement of the value of the land, either under water or out of water, made by the street commissioner and commissioners of the sinking fund, preliminary to the sale.
    That the sale was not made at public auction; but, on the contrary, a resolution to that effect, offered by the recorder in the course of the proceedings, at a meeting held December 22, 1852, was negatived: that, as plaintiff is informed and believes, no previous notice of sale was given by publication twenty days before; but, on the contrary, a resolution, providing for the publication of the resolution of the Common Council in a time and manner likely to attract bidders, offered by the same officer on the same occasion, on December 24, 1852, was also negatived; and that a similar disposition was made of two further resolutions, offered by said officer, one to fix a maximum price of three hundred thousand dollars, and the other to fix the highest sum offered as a minimum price, and to accept the highest offer made by a responsible bidder above that sum.
    That on the 27th day of December, 1852, the said officers, at a meeting held that day, notwithstanding the dissenting votes and written protest of the recorder and chamberlain, adopted a resolution, fixing the price of said property at the sum of one hundred and sixty thousand dollars; and a further resolution that the comptroller be authorized to issue a grant of said property, containing the usual covenants, to Reuben Lovejoy, for the sum of one hundred and sixty^thousand dollars, upon the terms fixed by the resolution adopted on the 24th of the same month.
    That thereupon, in disregard, not only of the provisions of law aforesaid, but of the last-mentioned resolution, the mayor signed, and the clerk of the Common Council affixed the seal of the corporation to an instrument in writing, bearing date December 27, 1852, purporting to be a deed or grant of said property to Joseph B. Varnum, which, on the 30th of the said month, having been duly acknowledged, was recorded in the office of the register of the city and county of New York. That, as plaintiff is informed and believes, the said Varnum at the same time executed a mortgage of said property to the Mayor, Aldermen, and Commonalty of the city of New York, to secure the sum of one hundred and twenty thousand dollars, payable in five equal annual installments, of twenty-four thousand dollars each, with annual interest on the amount unpaid at six per cent, per annum, payable half yearly.
    That the said Varnum, and not Lovejoy, gave a bond and entered into the necessary covenants, as appears of record and as plaintiff is informed and believes, and that the mortgage differs in terms from the last-mentioned resolution and conflicts with the ordinance of 1844.
    That, as plaintiff is informed and believes, the said Varnum and wife, by deed bearing date December 31,1S52, recorded in said register’s office January 8,1853, assumed to grant to Robert B. Coleman an undivided half of said property for half the consideration money, subject to half the said mortgage and to the covenants contained in the original grant to Yarnum.
    That said Joseph B. Varnum and Robert B. Coleman are made defendants in this action, and were acquainted, as plaintiff* is informed and believes, with each and all of the facts recited in this complaint at the time of the purchases by them. And the plaintiff further shows, upon information and belief, that although the said resolution directs a grant to issue to Reuben Lovejoy, yet said Lovejoy was not personally interested in procuring the sale ; but the defendant, Simeon Draper, was one of the persons actually influential and actually interested therein, and in the profits and advantages to be derived therefrom; and that, as plaintiff is informed and believes, the said Simeon Draper appears on the books off the then comptroller, charged with' the said property, as though the sale had been made to him directly. And the plaintiff further shows, upon information and belief, that although the grant or deed first mentioned is on its face executed to Joseph B. Varnum, yet the defendant, Simeon Draper, paid part of the purchase money, and is now directly or indirectly interested in said property, or the profits thereof, and appears on the books of the late comptroller to be credited by name with the sum of forty thousand dollars as a payment of twenty-five per cent, of the purchase money of said property.
    And the plaintiff further shows, that said Simeon Draper was, at the time of the sale aforesaid, an officer of the corporation, or head of a department, being one of the governors of the Almshouse; and, as plaintiff is advised, was forbidden by the existing charter of the city, amended in 1849, to be directly or indirectly interested in the purchase of any real estate or other property belonging to the city.
    And the plaintiff shows that the property sold as aforesaid is ' of far greater value, as he is informed and believes, than the' price aforesaid, and has been estimated, by persons familiar with real estate, as fully worth three hundred thousand dollars.
    .That it consists partly of land reclaimed, or in the process of being reclaimed, from water, at great expense to the city, and mostly of land under water; and is substantially described in the so-called deeds or grants aforesaid, as follows: Bounded southerly by Gansevoort-street, westerly by Thirteenth avenue, northerly by Twelfth-street, and easterly by Tenth avenue and West-street; containing on the southerly side five hundred feet two inches, on the westerly side eight hundred and seventy feet ten and one half inches, on the northerly side six hundred and thirty-three feet eight inches, and on the easterly side five hundred and eighty-four feet and two inches—reserving therefrom the streets and avenues running through the same, and granting the bulkhead, built on the Borth Biver, with certain rights of wharfage and cranage belonging to wharves, already built upon the premises.
    
      And the plaintiff charges, upon information and belief, that the sale aforesaid was attempted without authority and in breach of law and of trust, at the instance, under the influence, and to subserve the interest of an officer of the corporation; and that it tended to the sacrifice of the city property, the loss of taxpayers, and ultimate injury of creditors: that the city debt now amounts to about the sum of fourteen million five hundred and seventy-eight thousand nine hundred and five dollars, and the city property available to pay the same is of the value of about seven million five hundred and forty-tuvo thousand one hundred and three dollars.
    Wherefore the plaintiff shows, that the record of the pretended grants or deeds aforesaid is a cloud upon the title, and injuriously affects the credit of the city, and the said -grants should be declared void and delivered up, and the record thereof should be cancelled.
    And the plaintiff, as a tax-payer and citizen of the city of New York, prays the judgment of this court, declaring said pretended deeds or grants void, directing them to be delivered up and annulled, and authorizing the register of the city and county of New York to cancel them of record.
    And the plaintiff also, as a creditor of the said corporation, prays the aid and judgment of this court to set aside the sale aforesaid, as an unlawful alienation of the corporation property, and for such further or other relief as to the court may seem proper in the premises.
    S. Weir Roosevelt, Plaintiff’s Att’y.
    
    The defendants, Draper and Coleman, severally demurred to the complaint, and specified as the ground of objection, that the complaint did not state facts sufficient to constitute a cause of action to the plaintiff against the defendant.
    At a special term in March, 1855, the demurrer was overruled, the justice who decided the cause being of opinion that the allegation that the plaintiff was a resident and tax-payer of the city of New York, owning real and personal estate situate therein, and that he filed his complaint for himself and all others interested—although made in terms which perhaps might require more definiteness—would entitle him, according to the decision of the Supreme Court in this district, to an action (against the corporation and others combining with it) for the purpose of preventing their disposition of the property of the city, contrary to the charter of the city or the statutes of the State, or in breach of the duties of the corporation as quasi trustees, when this unlawful disposition will cause a loss to the city; and upon the same principle would also allow him to maintain an action, after the design of the defendants was partly accomplished, even by the execution of a deed, for the purpose of preventing any title being set up under that deed, and to cause tie defendants to do such other' acts as may be necessary to redress a wrong done, or about to be done, to the city.
    He accordingly held upon the facts alleged in the complaint, that the individual defendants should reconvey to the corporation, by a title free from all incumbrances, and with covenants against their own acts, and be repaid the amounts paid by them with interest, and the mortgage be satisfied; unless the corporation should elect to have the property sold at auction, and in a manner conformably to law : in which case the defendants would be bound by their purchase, unless the property should bring more than $160,000, and the interest thereon;—and that the costs of the plaintiff should be paid by the individual defendants : the corporation should bear their own costs.
    From this decision the demurrants appealed to the general term.
    Butler, Evarts & Southmayd, for the appellants.
    I. The grant by the corporation, upon a sale for valuable consideration paid, is an executed contract between the corporation and the grantee as sole parties to it. Like all other executed contracts, it can be rescinded or annulled only upon some recognized equitable ground of fraud or mistake as between the parties to such contract, and on the complaint of one of them. 1. In law this plaintiff is a mere stranger to the transaction, and has no standing in court to impeach a contract, in the execution of which the parties to it rest satisfied. 2. He had no estate in law or equity in the land conveyed, and no title of his is beclouded by the grant he seeks to avoid. 3. The corporation held the premises sold as its absolute property, with full power of alienation. A purchaser deals with the corporation as owner both in title and beneficial interest, and his dealings with it are subject to question only by it. 4. The plaintiff claims as tax-payer no interest or right, and complains of no injury, special or peculiar, to himself, or not common to the whole community of tax-payers. If subject to his suit, the defendants are subject to suit by every tax-payer, and a judgment in one suit is no bar to any other. 5. As creditor, the plaintiff had no right in the property sold nor to the property sold, and shows no debt due to support any right against his debtor’s property. 6. The only obligation of the corporation, in respect of this or other property owned by it, is its just administration for the public purposes for which the corporation exists. The breach of this obligation is never a private injury, but a violation of public duty to be punished or repaired by the offended sovereignty which cares for the public interests, through its appropriate functionary, the attorney-general. (Davis a. The Mayor, &c., 2 Duer, 663 ; same case in Court of Appeals; and see 22 Barb., 446, 449, 484.)
    II. The complaint shows no sufficient grounds for the relief prayed for. 1. Neither the corporation ordinance, nor the legislative adoption and confirmation of it by the law of June 20, 1851, interposes any obstacle to the sale of this property by the corporation. (Rev. Cord., 211; Laws of 1851, 454.) The property devoted to the sinking fund by that ordinance is necessarily limited to the property within its descriptions owned by the corporation at the time of its enactment: the property in question was acquired subsequently by conveyance from the United States. The ordinance of the sinking fund, in its provisions for the sale or other disposition of the property to which it relates by the commissioners of the sinking fund, is a bestowal of authority upon them as agents of the corporation; its restrictions are limitations on the powders thus delegated—not an abandonment or deprivation by the corporation of its own powers as owner and principal. Until the passage of the act of the Legislature of June 20, 1851, the ordinance of the sinking fund could at any time have been repealed or modified, both in its substantive provisions which establish the fund, and in its arrangement of the delegated powers and duties of the commissioners. The effect of this statute is but to prevent any such repeal or modification. But as the ordinance of the sinking fund, by its delegation of certain powers to the commissioners as to the sale and disposition of certain property, in nowise impaired or impeded the original powers of the corporation, as owner and principal, to sell and dispose of the .same property; so the statute, which merely protects the ordinance from amendment, adds nothing to its purport or effect in this behalf. The sale of the property in question was made, not by the commissioners of the sinking fund under the delegated powers of the ordinance, but by the corporation itself, by resolution of the Common Council; and the commissioners of the sinking fund acted under the special authority of such resolution, as a committee to fix the price and terms of the sale. If any informalities in the exercise of delegated powers, or any excess of delegated authority on the part of any agents of the corporation, have intervened in the progress of the sale, yet, if in its completion (which is not denied in the complaint) the seal of the city has been put to the grant by the authority of the Mayor and Common Council, the conveyance is lawful and effectual. 2. The fact that Simeon Draper was, at the time of the grant, one of the governors of the Almshouse, does not affect the validity of the sale or conveyance. (Am. Charter Laws, 1849, 278; Almshouse Act, Ib., 367.) A governor of the Almshouse is not an officer of the corporation or head of department within the inhibition on such persons of the charter of 1849, as to dealing with corporation property. If he were, the violation of this inhibition is but a breach of duty, and does not avoid an executed contract, though it might be a defence to the enforcement in his favor of an executory one. If a ground for rescinding an executed contract, it could only affect his interest and in his hands, and the corporation only could insist upon the rescission. The allegations of the complaint show no present estate or interest of the defendant Draper in the lands, and do not sufficiently aver the nature or character of his previous interest in the matter in controversy. 3. There is no charge of fraud or corruption in the sale or conveyance, nor of collusion between the corporation or any of its officers and the purchaser, nor of interest in the purchase on the part of any officer of the corporation who acted in the negotiation, sale, or conveyance. The allegation of greater value in the property than the price paid, as made in the complaint, is utterly immaterial. It is not alleged that the corporation, or any of its officers, knew or supposed it to he of such greater value. It is not alleged that any offer was made of a greater price for the property, from the rejection of which an inference of breach of duty in the actual sale might arise. The complainant does not offer a larger price for the property on the rescission of the sale, nor allege that any party is ready to pay a larger price on such rescission. The complaint does not allege that the corporation has been applied to, to proceed to -rescind the grant, and has refused.
    III. If the sale or conveyance be invalid on either of the grounds of legal incapacity to convey or take, stated in the complaint, these are defects in the title of the defendants, Yarnurn. and Coleman, which concern them, and are no grievance to the tax-payers or creditors of the city.
    IV. The complainant prays for the cancellation of the grant and annulling of the -title of the defendants, Varnum and Coleman, yet neither offers to make or procure a return of the $40,000 consideration money paid : in the nature of the case, it is impossible for him, a stranger to the contract, to perform this requisite to the relief asked; how can he, then, obtain such relief?
    V. If this complaint is sustained, it will establish these principles : (1.) that every citizen may bring into controversy every transaction of the corporation in the sale or lease of the corporate property whose terms appear disadvantageous to the citizens, without any element of fraud, corruption, or collusion on the part of the corporation or its officers; and (2.) that the judicial tribunals may review and reverse the action of the corporation in respect of the corporate property on points of jjure financial discretion.
    On behalf of the defendant Draper, it was further insisted that the whole relief prayed is the cancellation and annulling of the •grant from the corporation, and the subsequent conveyance and the removal of the cloud on the corporation’s title they create : that it does not appear that the defendant Draper has, or at any time had, any estate or title in the land, or that any act of his can aid in removing the alleged cloud on the title: that on the case no relief is either needed, or can be had against him.
    
      S. IF. Roosevelt, for the respondent.
    
      I. It is conceded that the court has j urisdiction on the subject of the action and the persons of the defendants ; that plaintiff has the legal capacity to sue, and that there is no defect of parties, plaintiff or defendant. The only question raised by the demurrer is, whether the complaint states facts sufficient to constitute a cause of action. Code (Voorhies Ed., 1851). §§144, 145, 148.
    II. The resolution of the Common Council, directing the sale, is void on its face, as an attempt to delegate powers not susceptible of delegation. 1. The power of the private sale of property belonging to the city—whether considered as a power in trust, a corporate power, a legislative act, or as involving the exercise of judgment and discretion, is vested in the Common Council, and cannot be delegated. (Dongan’s Charter of 1680, § 7; Kent’s City Charter, 13 ; Montgomerie’s Charter of 1730, § 14; Kent’s City Charter, 54, 55 ; Conro a. Port Henry Iron Co., 12 Barb., 62, 63; Farmer’s Loan and Trust Co. a. Carroll, 5 Bash., 649; Tanner a. Trustees of Albion, 5 Hill, 121; Powell a. Tuttle, 3 Comst., 396; Exparte Henry Wilson, 3 Story R., 411; Thompson a. Schermerhorn, 9 Barb., 152; Dominick a. Mitchell, 4 Sandf. S. C. R., 374 and 402; Bergen a. Duff, 4 Johns. Ch. R. 368; Hawley a. James, 5 Paige, 318.) 2. Such power cannot in any event be delegated to a body, some of the members of which are not members of the Common Council, and which is no constituent part of the corporation. (4 Inst. 48, approved in Rex. a. Westwood, 4 B. & Adol., 806; Rex. a. Bird, 13 East, 367.)
    III. If the duties under the resolution are wholly or partly executive, they cannot be performed by the commissioners of the sinking fund, as at present organized—two of them being members of the Common Council. (Laws of 1849, ch. 187, § 9.)
    IV. The resolution is an amendment or repeal so far as respects this property of the ordinance of 1844, and is therefore void. (Rev. Ord. of 1845, 222, ch. 19, tit. 4, § 17; Laws of 1812 (6 Webster & Skinner, 436, 438), ch. 99, §§ 1 and 9; Laws of 1845, 248, ch. 225, § 5; Laws of 1851, 455, ch. 236, § 5.) 1. The acts of 1851 and 1854 must be presumed to have been passed at the instance of the corporation. They were also accepted with all their conditions by the issue of stock, and effectually limit the general powers of the Common Council. (Corporation of N. Y. a. Oldreman, 12 Johns., 122; Bank of U. S. a. Dandridge, 12 Wheat., 64 ; Androscoggin Bank a. Bragg, 11 N. H. R., 102; Atty. Gen. a. Aspinwall, 2 Mylne & Craig, 613.) 2. Supposing the acts in question do not apply, still the ordinance cannot be repealed or amended so as to affect the security of creditors without impairing the obligation of a contract.
    In connection with the act of 1812, the ordinance created an equitable lien or trust in favor of holders of city stock. Stock has been bought and sold on faith of its provisions, and rights have vested. (Brady a. The Mayor of Brooklyn, 1 Barb., 684; Bank of U. S. a. Dandridge, 12 Wheat., 68; People a. Supervisors of Westchester, 4 Barb., 64; People a. Manhattan Co., 9 Wend., 351; Benson a. Mayor of N. Y., 10 Barb., 223 ; Trustees, &c., a. Bradbury, 2 Fairf., 118; Norris a. Trustees of Abingdon, 7 Gill, & Johns., 7.)
    V. The ordinance of 1844 was disregarded by the commissioners of the sinking fund in every particular.
    VI. Supposing that the ordinance of 1844 does not apply, the circumstances of the sale established a breach of trust on the part of the corporation, and its agents, the commissioners. (See The Brick Presbyterian Church a. N. Y. City, 5 Cow., 538; and 3 Barb., 255, and 3 Hill, 531; 2 Rev. Stat. (3d ed.), 641, § 28; Powell a. Tuttle, 3 Comst., 396; Sinclair a. Jackson, 8 Cow., 543; Ridgely a. Johnson, 11 Barb., 527; McCoy a. Curtice, 9 Wend., 17; Green a. Miller, 6 Johns., 39.)
    VII. One of the governors of the Almshouse was interested in the purchase. This fact alone avoids the sale. 1. Such purchase is prohibited by public policy and by statute, a governor of the Almshouse being a head of a department or officer of the corporation, within the meaning of the prohibition. (Laws of 1849, 278, ch. 187, §§ 9, 17, 19, 20, 21, 25, p. 367, ch. 246; Laws of 1850, 697, ch. 329; Laws of 1851, 1001, ch. 543; 1 Webst. & Skin., 566, ch. 184, April 8, 1801; 3 Webst. & Skin., 208, ch. 178 (b.), April 15,1814; Laws of 1821, 9, ch. 13, June 22, 1821; Lems of 1830, 126, ch. 122; Rev. Ord. of 1845, 117 to 130, 551 to 574; Bailey a. Mayor of N. Y., 3 Hill, 531, 541, and see 2 Den., 431; People a. Bedell, 2 Hill, 196.) 2. Whether Draper was wholly or partly interested, the sale was wholly void as to all the defendants. They purchased (it is admitted) with full knowledge of the facts. (Bell a. Quin, 2 Sandf., 146 ; Thayer a. Rock, 13 Wend., 53 ; Mackie a. Cairns, 5 Cow., 547, 580; Hyslop a. Clarke, 14 Johns., 465; Crawford a. Morrell, 8 Johns., 195.)
    VIII. The commissioners of the sinking fund accepted the bid of Lovejoy, and directed the comptroller to issue a grant to him. The grant was, in fact, issued to Varnum. Lovejoy gave no bond and entered into no covenants. These facts annul the grant. (Marshall a. Guion, 4 Den., 581; Smith a. City of New York, 4 Sandf., 221.)
    IX. It is not possible or necessary for the plaintiff to offer to refund the purchase money. (Bolt a. Roger, 3 Paige, 154.)
    X. The sale is void. The grant was issued, signed, and sealed by the officers of the corporation without authority. The subsequent deed to Coleman should bé delivered up; Draper should be excluded from any interest in the premises, and tire record of the deed to Coleman should be cancelled. (Williams a. Peyton’s Lessee, 4 Wheat., 7; Mayor of Colchester a. Lowton, 1 Vesey da Beames, 243, 244.)
    1. If any question can be raised, on this demurrer, as to jurisdiction, the following cases show that the plaintiff has a cause of action, as tax-payer, simply; or as a citizen holding-stock, and so more interested in the fund than others ; or as a creditor to whom the fund is pledged, and that this corn-t has jurisdiction. (Christopher a. The Mayor of New York, 13 Barb., 567; Stuyvesant a. Pearsall, 15 Ib., 244 ; Davis a. The Mayor of New York, 1 Duer, 451; Milhau a. Sharp, 15 Barb., 193 ; Lawrence a. The Mayor of New York, 2 Ib., 578 ; Bailey vs. The Same, 3 Hill, 531; Browser vs. The Same, 3 Barb., 255 ; Hickens a. Congreve, 4 Buss., 562 ; Bromley a. Smith, 1 Sims, 8 ; Blair a. Agar, 1 Ib., 37; Ellis a. Ear1 Grey, lb., 214; Atty. Gen. a. The Mayor of Liverpool, 1 M. & C., 171; King a. Watson, 5 T. R., 204.)
    XI. The property in question was vested in the corporation ' prior to 1844, and was therefore within the terms of the ordinance of 1844, whether that ordinance is or is not prospective. (Montgomery’s Charter, § 3 ; Kent’s City Charters, 7, 28, 39; Laws of 1807, ch. 115, § 31; 5 Webst. & Skin., 130 ; Laws of 1826, 43, eh. 58; Laws of 1837, 166, ch. 182, §§ 1, 8.)
    
      
       In Korff a. Green [Supreme Court, First Distric, Special Term, June, 1858), the plaintiff, a resident freeholder and tax-payer, bringing action in his own behalf and in behalf of other tax-payers, sought to restrain the trustees of the common-schools of the Fourth Ward from executing a contract for the purchase by them, from other defendants, of certain real property, which they had agreed to purchase for the purposes of a public school. The complaint alleged that the premises were not worth more than twenty thousand dollars, and that the vendors, by bribery, had fraudulently procured the making of the agreement by which the trustees were to pay thirty-one thousand dollars for them, and demanded an injunction. Mr. Justice Ingraham, before whom the cause came on for trial, dismissed the complaint upon the authority of the above case of Eoosevelt a. Draper.
    
   Balcom, J.

—-My views in this case are briefly as follows : If it be conceded that the deed from the Mayor of the city of ¡New York to the defendant Varnnm is voidable or void, still the plaintiff cannot sustain this action. He cannot maintain it as a creditor of the city, for the reason that the stock he holds is not due, and the city has not made default in the payment of any interest thereon; and he has no lien upon the land in question. The law confers no authority upon the plaintiff to prosecute this action for any person other than himself, and his interest as a tax-payer of the city is too uncertain to entitle him to the interposition of the court as between the city and a vendee of its property; indeed, his interest in the matter in dispute is speculative or imaginary, and clearly no greater or more certain than that of every other owner of city stock and tax-payer within the corporation.

The gist of the case made by the complaint is, that the city has made a void or improvident sale of a portion of its real estate to Varnum, and that the plaintiff believes he will sustain a pecuniary loss by reason thereof, either as a holder of city stock, on which nothing is yet due, or as a tax-payer of the corporation. If the plaintiff can sustain this action, every other tax-payer of the city who owns city stock amounting to §100 may institute a similar one. It seems to me that the sanctioning of such a proposition would produce incalculable mischief, and violate the well-established principle that one person cannot sustain a civil action for an injury of a public nature, when the damage he sustains is no greater than that sustained by every other member of the community.

The earlier decisions in this district, which seem to hold the doctrine that tax-payers may maintain actions similar to the one at bar, have been too much shaken by recent adjudications in this city and the Court of Appeals, to be relied upon as establishing the right of the plaintiff to the relief demanded in his complaint.

The tax-payers of the-city and holders of city stock must find a remedy, if one is to be found, through the ballot-box, the grand jury, or the attorney-general, for abuses of corporate authority, by their Mayor and Common Council, in the disposition of city property, or they must apply to the Legislature for the passage of different laws than are now to be found in the statutes of the State.

I am of the opinion the complaint in the action does not state facts sufficient to constitute a cause of action, and that the order made at the Special Term, overruling the demurrers to the complaint interposed by the defendants Draper and Coleman, should be reversed, and that those defendants should have judgment upon the demurrers with costs, but with leave to the plaintiff to amend his complaint in twenty days, on payment of costs. 
      
       Present, Clerke, P. J., and Sutherland and Balcom, JJ.
     
      
       This appeal had been previously argued before the General Term, held by Justices Gierke, Peabody, and Harris. Mr. Justice Harris thereupon prepared an opinion sustaining the demurrers ; but before it had been adopted and announced as the opinion of the court, Mr. Justice Peabody loft the bench, and the cause was subsequently arguejl a second time at another term, and that argument, and the decision thereupon, js the_ one above reported.
      The following is the opinion’o^Mr. Justice Harris :
      By an ordinance of the corporation _. of Hew York, passed on the 22d day of February, 1844, it -is .declared that all moneys thereafter to be received from certain specified sources,—one- of which is, “ the nett proceeds of all sales of real estate belonging to the corporation when sold,”—are pledged, appropriated to, and constitute and’form’a fhqd qalled ‘ The sinking fund of the city of Hew York, for the redemptipn of the city ‘debt.” By another section of the same ordinance, the mayor, rectirder,.jeamptíoller, and treasurer of the city, together with the chairmen of the finance committees in the Boards of Aldermen and Assistant Aldermen, are constituted commissioners of the sinking fund. By another section, a scale of prices is established to be charged for land under water between Hammond and Thirtieth streets, on the Hudson River. The price to be charged for such land between Gansevoort and Twelfth streets, which is the land in question, is fourteen dollars for each running foot, to be measured in the manner specified. It is not pretended that the provisions of the section have been violated by the sale which is the subject of this action.
      But there is still another section of the ordinance -which authorizes the commissioners of the sinking fund to sell and dispose of all real estate belonging to the corporation, and not in use for, or reserved for public purposes, in the manner and upon the terms therein specified. Such sales were to be made at public auction, upon twenty days’ previous notice, and for a price not less than the appraisement of the same lands to be made by the commissioners of the sinking fund, within one month next preceding the time of the sale. The sale in question was not made in conformity with these requirements, and for that reason it is insisted that the transaction was unauthorized and void. I think, however, that even in respect to sales made by the commissioners of the sinking fund, the provisions of this section are not applicable. It seems to me to be rather a case within the other provisions of the ordinance relating to the grant of lands under water. But however this may be, there is nothing in the ordinance which stood in. the way of the sale by the corporation. The proceeds of all sales of real estate had been devoted to the sinking fund, provided for the redemption of the city debt. The purchase money received for the land in question, could not be diverted from this object, without a breach of faith. But the authority granted by the ordinance to the commissioners of the sinking fund to make sales, was but a special power to be exercised in a specified manner. The corporation was the principal. The commissioners of the sinking fund were the agents. The agents were not at liberty to depart from the line of proceeding prescribed for them, but there is nothing in the ordinance which thus restricts the principal. Being the owner, it might sell upon such terms and in such manner as it might deem expedient. The only restriction upon the exercise of its discretion, was in the disposition of the proceeds. These had been already appropriated. They belonged to the sinking fund, and could not lawfully be diverted. No complaint is made in this respect. It is not pretended that the $40,000 received upon the sale have not been paid over to the commissioners of the sinking fund for the purposes contemplated by the ordinance of 1844. So far, therefore, as it relates to the manner of making the sale, there is nothing to impeach its validity. The corporation was competent to make the grant, and the defendant Varnum was competent to make the purchase. There was nothing illegal in the mode of proceeding by which it was effected.
      But it is alleged, and the demurrer admitsJ¡h¡^(ftíÍ!W!^ENbe grant was made to the defendant Vamum, yet that the defendant Dfftptfr j\a^*ls<Haterested in the purchase, and being at the time a goveriror.t^Bne Almshouse, mid, as such, an officer of the corporation, the fact that he-.was so interested, rendered the whole transaction illegal and void. It is also allesedvari^i ^vie' purposes of this question, admitted, that the other defendants -Vmium and Colemah, at the time they severally received their conveyances, knew that Drappivwas ^interested in the purchase, and it is insisted that they are tl^qrlfli jtnetr tiititle^ to protection as purchasers in good faith. X
      The 19th section of the act to amend thechertei^if'me city of New York, passed April 2, 1849 (Laws of 1849, 283), declares that “ no member of the common council, head of departments, chief of bureaus, deputy thereof, or clerk therein, or other officer of the corporation, shall be directly or indirectly interested in the purchase of any real estate, or other property belonging to the corporation.” The same act provides for the distribution of the executive power of the corporation, and establishes various departments in which such power is vested. Among these is the Almshouse department, the chief officers of which were to be called “the governors of the Almshouse.” A governor of the Almshouse, therefore, is one of the heads of an executive department of the corporation, and as such is prohibited from being in any way interested in the purchase of real estate belonging to the corporation.
      The question which this state of facts presents is, what is the effect of this violation of the statutory inhibition upon the conveyance by the corporation to Varnum ? Upon its face, the transaction is legal. It is an executed contract between competent parties. The grantor was competent to convey, and the grantee was competent to purchase. Had the contract remained executory, perhaps neither party could have enforced its performance, for the reason that it contained an element of illegality. An officer of the corporation was interested in the purchase, and this was prohibited by law. The parties to the contract denied this, and yet they executed it. If the law was violated thereby, both parties agreed in such violation. They were in pari delido. In such cases the rule is, potior est conditio defendentis. Thus where land is conveyed in consideration of the composition of a felony, the grantor cannot avoid- the deed on the ground that the transaction was illegal. (Inhabitants of Worcester a. Baton, 11 Mass., 368; 1 Story’sEq. Jur., § 298.) It was therefore very.properly conceded by the counsel for the plaintiffs, upon the argument, that the corporation of New York could not maintain an action to avoid the conveyance.
      The next and more important question is, whether the action can be sustained by this plaintiff? He is the owner of property in the city of New York, which, in common with the property of thousands of other citizens, is liable to taxation for the payment of the debts and expenses of the corporation. He has no interest, legal or beneficial, in the property in question. The relation of cestui que trust and trustee does not exist between him and the corporation. The property, like all other property owned by the corporation, and like property owned by the State or the national government, was held upon a public trust. Those intrusted with the control of public affairs, whether it be in a city, State, or nation, act under the obligations of a duty to the public, and are bound so to dispose of the property" committed to their charge, as, in their judgment, will best subserve the public interests: what will best accomplish this end, it is for them to determine. The mere subject of the government, because he is liable to contribute towards the support of that government, is not authorized to call its officers to account before a judicial tribunal for the manner in which they have discharged their official trusts.
      I am aware that two or three cases have been decided in New York which seem somewhat to invade the general principle to which I have referred. In Christopher v. The Mayor, &c., of New York (13 Barb., 567), an injunction was allowed to restrain the city government from entering into a contract for rebuilding a market. The plaintiff was allowed to interfere, to prevent an illegal contract which would have the effect to increase the city taxes, upon the ground that he was a tax-payer, and owned land subject to taxation. The order was sustained upon appeal by the general term, and a decision to the. same effect was again made in De Baum v. The Mayor, &c., of New York (16 Barb., 392). The case of Milhau v. Sharp (15 Barb., 435), and also Stuyvesant v. Pearsall (15 Barb., 244), are regarded as authorities to the same point; but I think the decisions in the latter cases may be defended upon less questionable grounds. The acts which the plaintiffs sought to restrain were unlawful, and would result in special injury to the property of the plaintiffs. This alone was sufficient to sustain the actions. See Milhau v. Sharp (17 Barb., 445). The case of Brower v. The Mayor, &c., of New York (3 Barb., 254), was also cited by the plaintiff's counsel as authority in favor of his right to maintain this action ; but that case was decided upon the well-settled principle that one party may restrain another from erecting a nuisance, when it will injuriously affect his own property. Lawrence v. The Mayor, &c., of New York (2 Barb., 577), was decided upon a kindred principle. The plaintiff was the owner of property bounded on a street, and, as such owner, was entitled to the use of the street; and it was held that he had such an interest in the street that he might maintain an action to prevent the corporation from closing up any part of it.
      The case of Adriance v. The Mayor of New York (1 Barb., 19), is referred to by Mr. Justice Mitchell in his opinion delivered in De Baum v. The Mayor, &c., of New York, above cited, as a decision in favor of the doctrine that a tax-payer may maintain an action to restrain a municipal corporation from making an illegal appropriation of public funds. But that case can scarcely be regarded as authority for such a purpose. It was undefended. The court, when the plaintiff moved for judgment, expressed its own doubt whether it had jurisdiction in such a matter ; but as the defendants did not choose to oppose it, the relief asked for was granted. It is worthy of notice, that the same judge who decided that case did not concur in the decision made in the very case in which it was referred to as the leading authority.
      I think, therefore, that I am justified in saying, that the only cases in which the right of a tax-payer, as such, to maintain an action for the mere purpose of restraining a municipal corporation from doing an unlawful thing, which may by possibility increase the amount of taxes with which he may become chargeable, are those of Christopher «. The Mayor, &c., of New York (18 Barb., 567), and De Baum v. The same (16 lb., 392), each of which cases was decided by a divided court. And I may add, that the doctrine of these cases seems to me to be in conflict with the general principle of law, that no private person can maintain a remedial action for an illegal act from which he suffers no other injury than that which he suffers in common with the whole community. It is a familiar rule, that no person can maintain an action for relief unless he can show some special injury beyond that which is suffered by the public at large.
      Since writing the above, I have met with, and perused with delight, the masterly argument of Mr. O’Connor in Wetmore v. Story (22 Barb., 414), where the decisions I have noticed, and many others bearing upon the same question, have been examined, and the principles they involve discussed, with a degree of thoroughness and power which have commanded my admiration. My own reading has rarely brought to my notice so complete a discussion of a great and interesting subject as the report of this argument presents.
      While it may be, that, sitting in this court, I am bound to regard it as settled by authority that a private action may be maintained against a principal corporation to restrain an act which may be deemed injurious to the public interest, yet I may be allowed to say, that in my judgment the decision of the Superior Court upon the same question, in Davis v. The Mayor, &c., of New York (2 Duer, 663), stands upon a much firmer basis. I am not satisfied with the doctrine, that every resident within the bounds of a municipal corporation may, at his pleasure, call the authorities of such municipal government to account before a civil tribunal, upon the mere allegation that he has contributed to the support of the government, and apprehends that he may again be called upon to do so, and that those who have the management of the government, have done, or are likely to do, something which they are not authorized to do, and which in the judgment of the plaintiff will injuriously affect the interests of the community. Such a ground of action was never before asserted. If it has now found a stand in this court, I will submit to its authority, but at the same time protest against extending it beyond the limits it has already secured.
      In the case now under consideration, the action is brought, not, as in the cases already decided, to restrain an illegal act on the ground that it will prove injurious to the public interests, but to rescind a contract already executed. The property was sold for a large price, a large amount of the purchase money was paid, and it may be assumed has actually passed into the hands of the commissioners of the sinking fund ; the balance has been satisfactorily secured, and belongs to the same fund. No fraud or collusion is alleged. It is faintly asserted that, at the time of commencing the action, the property was of greater value than the price for which it was sold. It is not pretended that the city authorities knew, or had reason to believe, that it was worth more than the amount, or that the property could have been sold for any greater sum. The plaintiff says, indeed, that some persons have estimated the property as high as 8300,000, which is nearly double the amount for which it was sold, hut such an allegation is worth but little, when the plaintiff himself has not sufficient confidence in it to make the allegation upon his own responsibility. In short, to sustain this action and annul the conveyance, the court must hold, that although the sale was made for an adequate price, or at least for a price not so inadequate as to furnish any evidence of fraud, and although the corporation had the right to sell and the grantee to purchase, yet, inasmuch as an officer of the corporation was interested in the purchase, and thus was guilty of a technical violation of law, although without any pretence of collusion or actual fraud, the transaction is void. And not only this, hut even though the parties to the contract are content to give it effect, and though ail the citizens of Hew York, who are alike interested in the proper administration of the affairs of the corporation, except the plaintiff, are willing that the contract, as it has been made and executed, shall stand unrescinded and unchallenged, yet, that the plaintiff alone, merely because he has paid taxes, and may again he called upon to do so, has a right of his own mere motion, against the will of the municipal authorities of the corporation, and without the consent of the public expressed in any manner recognized by law, to demand the judgment of this court, declaring the conveyance void, recalling the purchase money already received by the commissioners of the sinking fund and by them invested in the manner provided by law, requiring this money, thus to be recalled, to be paid," not to the plaintiff, for he has no interest in it, but by some of the defendants to other defendants, and directing the purchasers of the property, whether they are able to do so or not, to reconvey to the corporation, with covenants against their own acts, and free from incumbrances. Such a judgment, to quote the emphatic language of Mr. Justice Eoosevelt, in De Baum v. The Mayor, &c., of Hew York, would indeed be “ an unheard-of remedy” applied to “an unheard-of grievance," It seems to me, that it needs but to consider the character of the relief which must he given, if the action is sustained at all, to see that the plaintiff has not, by his complaint, presented a case which entitles him to any relief. I am of opinion, therefore, that the order of the special term should he reversed, and that the demurrers to the complaint should be allowed, but with liberty to the plaintiff to amend his complaint within twenty days after service of this decision, upon payment of the costs upon the demurrers; and this appeal to he taxed by the clerk of this court in Hew York.
     