
    HULL v. ELY.
    
      N. Y. Supreme Court, First Department; Chambers,
    
    August, 1877.
    Injunction.—Tax-payer’s Action Against Municipal Officer to Prevent Waste.
    Application to a court of equity for relief, must be made in good faith for the purpose of redressing an appreciable wrong, or to prevent the infliction of a substantial injury upon the plaintiff, or the persons whom he legally represents.
    A court of equity will not entertain a bill, where its equitable powers are used as a mere pretense to give jurisdiction.
    Hence, where a tax-payer brought an action pursuant to 1 L. 1872, c. 161, p. 467, to prevent waste or injury by the sale of certain ferry franchises in the city of Hew York, but it appeared from the circumstances surrounding the case that the plaintiff was not the real party in interest, nor had brought the action to protect Ms interests as a tax-payer,—Held, that he had' no right to call upon the court for the exercise of its equitable powers to enjoin the sale.
    Motion by plaintiff for an injunction.
    . This action was brought by James 0. Hull against Smith Ely, Jr., mayor, &c. of the city of Hew York, and others. The plaintiff was a resident of the city of Hew York, and a tax-payer therein, and as such brought this action, pursuant to 1 A., 1872, c. 161, to prevent certain alleged waste or injury to the property of the said city. The said waste consisting in the sale of certain ferry franchises, as was alleged by the plaintiff, in a manner contrary to law.
    - It was claimed upon the part of the defendants, and was virtually admitted by the plaintiff, that this action was not brought for the protection of the plaintiff and the other tax-payers of the city of Hew York; but that it had been instituted at the instigation and expense of the parties then using and enjoying the benefits of the ferry franchises, the sale of which it was sought to enjoin. In fact, one of the counsel for the plaintiff upon the argument of the motion spoke of the ferry companies, whom he represented.
    
      John M. Scribner, Jr., and Joseph Larocque (Shipman, Barlow, Larocque & Macfarland, attorneys), for plaintiff.
    
      George P. Andrews (William C. Whitney, attorney), for defendant.
   Van Brunt, J.

[After stating the facts.]—One of the first elements of an application to a court of equity is, that the application is made in good faith for the purpose of redressing an appreciable wrong, or to prevent the infliction of a substantial injury upon the plaintiff or the persons whom he may be said to legally represent.

In other words, the bill must be filed in good faith, and the court will not entertain a bill where the equitable powers of the court are used as a mere pretense to give jurisdiction (Story's Eq. Jurisp. § 74).

But it is claimed upon the part of the plaintiff, that he being a tax-payer, the act of 1872 gives him the absolute right to maintain this action. The provision of this act is, that actions may be prosecuted by a tax-payer to prevent waste or injury to the property of the corporation ; hence, it is apparent from the language of the statute, that if such is not the object of the action, viz. : to prevent waste or injury to the property of the corporation, no power is conferred upon the court to entertain the suit. The evident intent of the act was to give a tax-payer a standing in court for the protection of the interests of the tax-payers, to prevent waste or injury to the property of the corporation, but not the furtherance of the schemes of parties / who have no right, either legal or equitable, to claim the protection of tlie court.

It is apparent from the circumstances surrounding this case, that the plaintiff has not commenced the present action to protect his interests as a tax-payer in the city of New York, but that the real parties in interest'are the persons now using the ferry franchises as above mentioned, and consequently, he has no right to call upon the court for this exercise of its equitable powers.

The motion to continue the injunction must be de- , nied, with costs, and the temporary injunction dissolved.  