
    John J. Hicks, Respondent, v. James H. Cocks and John S. Burke, Appellants.
    Second Department,
    May 28, 1915.
    Parties—taxpayer’s action against town officers to compel repayment of moneys expended — town and payees not necessary parties — pleading — misappropriation of moneys sufficiently alleged.
    In an action brought by a taxpayer against a town supervisor and the superintendent of highways to compel them to restore moneys to the town alleged to have been illegally expended, the town itself is not a necessary party. It seems, however, that the town may voluntarily come in and make itself a party.
    Neither need the persons to whom the illegal payments are alleged to have been made be necessarily joined as defendants, for the action is not to cancel a contract or to annul their personal rights.
    An allegation that the moneys were misapplied and illegally paid with knowledge that it was without warrant of law is sufficient, and it need not be averred in the words of the Code that the misappropriations were “waste or injury to” the funds, of the town, for that would be a mere conclusion of law.
    Appeal by the defendants, James H. Cocks and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 8th day of January, 1915, as resettled by an order entered in said clerk’s office on the 4th day of February, 1915, denying their motion for judgment on the pleadings and overruling their demurrer to the amended complaint.
    
      Henry A. Uterhart [Alfred M. Schaffer with him on the brief], for the appellants.
    
      Percy L. Housel, for the respondent.
   Per Curiam:

The complaint is by a taxpayer against the individuals who were respectively town supervisor and superintendent of highways of Oyster Bay. In separate causes of action it charges illegal payments by the supervisor upon alleged unlawfully issued warrants by the superintendent of highways. The relief asked is that the defendants may he adjudged to restore the moneys to the town of Oyster Bay, and that the town have judgment for such amounts.

One ground of demurrer is, that the town of Oyster Bay is a necessary party. The statutes authorizing such taxpayer’s action (Code Civ. Proc. § 1925; Gen. Mun. Law [Consol. Laws, chap. 24; Laws of 1909, chap. 29], § 51) have no requirement to join the municipality. The acts were to enable the taxpayer himself to assert the rights of the municipality, by clothing the individual taxpayer with such a representative power. In favor of such a remedy against a use of public money contended to be illegal, a somewhat liberal construction should be given. (Prince v. Crocker, 166 Mass. 347, 348; Annis v. McNulty, 51 Misc. Rep. 121, 130; 116 App. Div. 909.) No doubt the town may 'voluntarily come in and make itself a party. Neither are the beneficiaries of these payments necessary to be joined. This is not an action to cancel a contract, or to annul any right of third persons. Indeed, a finding in favor of the plaintiff may not affect the rights of these payees. The policy of this legislation is to let a taxpayer squarely test the legality of such official acts, without having that issue clouded by complications arising from remedies as against third parties. Here the complaint charges various sums as misapplied, and illegally paid, with knowledge that the same were without warrant of law. This sufficed, without the averment in the words of the Code, that such misappropriations were “waste or injury to ” the funds of the town, which would be merely a pleader’s conclusion of law. Other grounds of demurrer have been considered, but are unfounded.

The order overruling the demurrer should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  