
    Theodore Wenk, Plaintiff, v. The City of New York et al., Defendants.
    (Supreme Court, Queens Special Term,
    December, 1901.)
    Taxpayer’s action — Limitation of his remedy — Parties — Insufficiency of complaint on demurrer to answer.
    The statutes (L. 1892, ch. 301; Code C. P., § 1925) authorizing a taxpayer to sue to prevent illegal official acts or official waste of the funds or property of a municipality authorize actions against the offending officials only, and if the suit is not against them it cannot be maintained.
    Where, however, the municipality and others are necessary parties in order that a complete judgment binding all interested may be rendered, they may be made codefendants with such officials, but this is only incidental to the cause of action against the officials.
    Therefore a taxpayer of the city of New York cannot sue it as lessor, its comptroller as collector of rents, and other persons as leaseholders, of common lands of the town of Jamaica, incorporated into said city on January 1, 1898, in orijer to set aside a collusive lease of said lands made by its town board in 1892, the offending officials not • being parties defendant.
    
      Quaere, whether, irrespective of the said statutes, a taxpayer may maintain such an action if he first demand that the city bring it and be refused — after the manner of a suit by a stockholder in a corporation.
    Where the complaint is insufficient a demurrer to the answer brings up the insufficiency of the complaint.
    Trial of issues of law. Besides the said city, Bird S. Coler, the comptroller of the said city, The United States Land and Improvement Co., The Cooperative Society of New Jersey and The Brooklyn and Jamaica Turnpike Co. (three corporations), and Alonzo E. Smith, Charles E. Twombly, John H. Eldert and William H. Boynton are defendants.
    The suit is by a taxpayer of the city, resident in the borough of Brooklyn, to annul a lease made in 1892 by the town officers of the town of Jamaica composing the town board of the said town to the defendant Alonzo E. Smith of certain common lands of the town for a term of fifty years. The other defendants, excepting the city and its comptroller, are alleged to have acquired certain interests in the said lands, immediately or remotely, from the said lessee. It is also alleged that the said town officers executed another lease of the said lands on April 19th, 1897, to the defendant Boynton for a term of fifty years to begin at the expiration of the said prior term, and also a confirmatory lease of the said first lease on December 29th, 1897.
    It is alleged that Frederick W. Dunton, one of the said town officers, i. e., the supervisor, was the real person in interest as lessee in the said first lease, and that the said lessee therein acted for him, and was used by him to conceal his interest; and that the said lessee in the said second and third leases stood in the same relation to the said Dunton.
    Hone of the said officials is made a party to the suit.
    The said town of Jamaica became a part of the defendant the city of Hew York by act chapter 378 of the laws of 1897 incorporating the said city.
    The defendant, The United States Land and Improvement Co. demurs to the complaint on the ground, among others, that it does not state facts sufficient to constitute a cause of action.
    The defendants The Cooperative Society of Hew Jersey and Alonzo E. Smith answer separately, and set up certain alleged defences, to each of which the plaintiff demurs on the ground that it is insufficient in law on the face thereof.
    H. A. Montfort for plaintiff.
    F. H. Van Vechten for defendants.
   Gaynor, J.:

The demurrer to the complaint that it does not state facts sufficient to constitute a cause of action must be sustained. Any right of action which the town of Jamaica had against the lessees to set aside the leases as voidable or fraudulent passed, I suppose, to the defendant the city of New York (City Charter, sec. 1616). But the right of action which is given to taxpayers by the statutes allowing suits to be brought by them to prevent illegal official acts and waste of the property or funds of municipal corporations, is against guilty officials only. Such statutes do not enable taxpayers to bring all suits which a municipal corporation neglects to bring, regardless of whether they be against such officials (Ch. 301, L. 1892; Code Civ. Pro. sec. 1925). The first of these statutes enables tax-payers to maintain suits against officers, agents, commissioners and other persons acting for a municipal corporation 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 municipal corporation; and the second is in substantially the same terms, except that it does not provide for a restoration. This suit is not against the officials who did the official acts complained of. It is against the lease-holders to annul the leases, the city being made a party as successor to the town of Jamaica, and the comptroller only because he is collecting the rents under the leases, which it is his duty to do. It is not covered by the said statutes at all. They do not provide for suits against municipal corporations, but only against officials thereof. They simply enable tax-payers to rake their officials over the coals in court. When such officials are so sued, the municipal corporation, or any one else, may be made a co-defeñdant when necessary to a complete and binding judgment upon every one interested; but that is only incidental to the cause of action against the officials. If this suit could be maintained irrespective of such statutes (which I do not need to pass upon — Overton v. Village of Olean, 37 Hun, 47; Roosevelt v. Draper, 23 N. Y. 318), it could only be after a demand by the plaintiff of the, proper city officials that they bring the suit in the name of the city, and a refusal by them to do so, the same as in the case of a stockholder of a corporation, and this would be a necessary allegation of the complaint. The' demand and refusal would put such officials and the city in the wrong.

As the complaint states no cause of action, the demurrers by the plaintiff to the answers have to be overruled, for such demurrers reach back to the first fault in pleading, and enable the defendants to question the sufficiency of the complaint. A bad answer is good enough for a bad complaint (Baxter v. McDonnell, 154 N. Y. 432).

The demurrer to the complaint is sustained; the demurrers to the answers are overruled.  