
    Theodore J. Farley, Plaintiff, v. City of Lockport, et al, Defendants.
    (Supreme Court, Niagara County,
    December, 1908.)
    Municipal corporations: Actions by and against city — Conditions precedent to action against city — Verification and filing of claim: Remedies of taxpayers and corporators — Action by taxpayer to control conduct of municipal affairs or to prevent waste, etc.— To restrain act within general powers done in irregular manner.
    Where a municipal charter provision requires all claims against the corporation to be verified and filed, a claimant cannot maintain an action at law until his claim is so filed.
    The common council may waive such provision of its charter and proceed to investigate and determine a claim brought to its attention otherwise than by a verified statement, but the filing of the verified claim is a condition precedent to its payment.
    A taxpayer’s action brought under L. 1881,, eh. 531, as amended in 1892, is maintainable only when the official act complained of is illegal or wrongful; and a mere disregard by a common council of‘ a city of legal formalities or orderly mode of procedure prescribed by its charter will not necessarily render a resolution " illegal ” within t)he meaning of said act.
    Motion to vacate injunction.
    J. F. Smith, for plaintiff.
    C. P. Baker and A. T. Hopkins, for defendants.
   Marcus, J.

The charter provision as to submitting a verified claim in writing may be waived by the common council, in so far as requiring the presentation of a claim before any investigation or action may be taken thereon.

The provision is mandatory upon a claimant, and has for one of its purposes the design of holding a claimant to an honest statement of his claim to be made under oath, subjecting him, therefore, to a charge of presenting a false claim.

A claimant could not proceed at law until such a claim ,was filed in accordance with the direction of the charter, but the common council may, for any reason sufficient to itself, waive such formality and proceed to investigate and determine a claim brought to its attention in a way other than by a verified statement. The verified statement must indeed be filed before a payment is made, and the filing .of a verified claim as condition precedent to payment in this case disposes of any question of lack of good faith or irregularity.

•The law is not designed to further a taxpayer’s action when merely a failure to follow formality in procedure has been disregarded, but rather when the act itself is illegal or wrongful. The taxpayer’s act (L. 1881, ch. 531, as amd. ¡L. 1892, ch. 301), was not designed or intended to draw into the preventive jurisdiction in equity, at the instance of any taxpayer, every wrongful official action, irrespective of the fact whether the act sought to be restrained involves a waste of public property, or a violation of public rights, or any injury to the interest of taxpayers, as such.

Its purpose is to prevent usurpation of powers by public ■officials, from which public injury might result, and to restrain illegal acts threatened which would produce public .mischief. Rogers v. O’Brien, 153 N. Y. 362.

.■ If the act sought to be enjoined is within the general .scope of the powers conferred upon the common council, the act done may not be illegal ” within the sense of the .statute, although done in an irregular manner and not in strict accordance with the particular mode, method or manner prescribed by the charter. A mere disregard of legal formalities or orderly mode of procedure prescribed, may not necessarily' render a resolution illegal.” It is not every departure from the regular mode prescribed in the charter that Will render the whole procedure of the common council “ illegal ” or void.

The statute only authorizes actions by taxpayers when the acts complained of are without power, or when corruption, fraud, or bad faith amounting to fraud, is charged (Craft v. Lent, 53 Misc. Rep. 483); and it is held that an injunction pendente lite should not issue in a taxpayer’s suit to annual a city contract unless it clearly appears that upon the law and the facts the official action complained of is illegal. Stockton v. City of Buffalo, 108 App. Div. 171, 174.

Motion to vacate .injunction granted.  