
    Queens County Water Company, Appellant, v. Robert Grier Monroe, as Commissioner of Water Supply, Gas and Electricity, and Edward Marshall Grout, as Comptroller, Respondents.
    
      Taxpayer's action — statute liberally construed—illegal act presumed to be injurious — authority to take private property strictly construed—power of commissioner of water supply, etc., in New York city to purchase land — a map must be first fled and notice and a hearing be given.
    
    The Taxpajmrs’ Act (Laws of 1881, chap. 531, as amd. by Laws of 1892, chap. 301) is a remedial statute and is to be liberally construed.
    The theory of the law is that the taxpayer, as the ultimate bearer of the burdens of the municipality, shall have a remedy against the illegal official acts which tend to waste property of the public and to impose unjust burdens on the taxpayer; and where the act is illegal the law presumes that injury may result to the corporation and through the corporation to the taxpayer.
    The only warrant for the imposition of a tax or a burden upon the citizen or his property without his consent must be found in some positive law, and it cannot be enforced unless imposed in the manner pointed out by the statute.
    In a taxpayer’s action the plaintiff has a right to urge any illegality or omission in the official acts of the defendant which he might urge in defense of his property in an action for ejectment under a tax title.
    
      The authority of a municipal corporation to take private property, either hy purchase or by condemnation proceedings, must be expressly conferred and the manner of its exercise strictly pursued.
    The right of a city to levy a tax upon the owner of property therein for the purchase of real estate or water rights is conditioned upon the performance of the prerequisites prescribed by the laws of the State; it is a mere naked power depending wholly upon statutory authority. The creation of specific means excludes others.
    The commissioner of water supply, gas and electricity of the city of New York, desiring to obtain certain land in the borough of Brooklyn for the purpose of increasing the water supply of such city, filed a map of such land. This map was approved by the board of estimate and apportionment of the city, which passed a resolution, pursuant to section 507 of the charter, authorizing the commissioner to purchase the land designated on the map at private sale.
    Sections 486, 488 and 489 of the Greater New York charter, providing, among other things, that, prior to the adoption of such a map, it shall remain open to public inspection and that persons interested shall be afforded an opportunity to be heard respecting the acquisition of the real estate described therein, were not complied with.
    
      Held, that as the formalities mentioned in the sections referred to had not been complied with, the commissioner of water supply, gas and electricity had no jurisdiction to purchase the real estate laid out on the map and that a taxpayer of the city of New York was entitled to maintain a taxpayer’s action to enjoin him from doing so;
    That section 517 of the Greater New York charter did not give the commissioner any power to acquire land in the borough of Brooklyn for the purpose of increasing the water supply of the city except under the restrictions imposed bv title 2 of the charter;
    That the application of the charter provisions, relating to notice and a hearing before the final adoption of the map, was not limited to a proceeding to acquire land hy condemnation.
    Bartlett and Hirschberq, JJ., dissented.
    Appeal by the plaintiff, the Queens County Water Company, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Queens on the 27th day of January, 1903, denying the plaintiff’s motion for an injunction pendente lite.
    
    
      Henry de Forest Baldwin, for the appellant.
    
      James McKeen [R. Percy Chittenden with him on the brief], for the respondents.
   Woodward, J.:

The plaintiff brings itself within the provisions of section 1925 of the Code of Civil Procedure and of chapter 531 of the Laws of 1881, as amended by chapter 301 of the Laws of 1892, entitled “An act for the protection of taxpayers,” and while it urges a special interest aside from its status as a taxpayer, we do not find it necessary to consider the equitable merits of its case at this time. Chapter 531 of the Laws of 1881, as amended by chapter 301 of the Laws of 1892, is a remedial statute, and is to be liberally construed for the purpose of “ the protection of taxpayers.” (Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492, 499; Latham v. Richards, 15 Hun, 129, 133, and authorities there cited; Adamson v. Union R. R. Co., 74 id. 3, 9; Matter of Town of Eastchester, 53 id. 181, 184; Armstrong v. Grant, 56 id. 226, 228; Ayers v. Lawrence, 59 N. Y. 192, 196, and authorities there cited; Osterhoudt v. Rigney, 98 id. 222, 231; Gorden v. Strong, 158 id. 407.) These acts for the protection of taxpayers give a new right of action. It was the settled law of this State, prior to the adoption of chapter 161 of the Laws of 1872 (the predecessor of the present statutes), that a taxpayer in his character as such, whose position was not different from that of the Avhole body of taxpayers, had no such interest as entitled him to resort to a court of equity, to revise, restrain or set aside the action of town or municipal authorities, upon an allegation that their acts were unauthorized and illegal, or that unless arrested they would subject the plaintiff to unjust or illegal taxation. (Osterhoudt v. Rigney, supra, 229, and authorities there cited.) The relegation of the taxpayer, under this doctrine, exclusively to legal remedies for relief, amounted in many cases to its practical denial, and it was the purpose of the Legislature to place the taxpayer in a position where he could, before the intervention of vested rights and the equities of third parties, challenge the legality of the acts of public officials upon the same grounds which he might interpose in a legal action to protect his property against alienation under an illegal assessment or other act of the public authorities by which he Avas to be divested of his property. (Ayers v. Lawrence, supra; Osterhoudt v. Rigney, supra.) Taking this view of the law, Finch, J., in the case of Warrin v. Baldwin (105 N. Y. 534, 537), says: “ The act of 1881 (chap. 531) expressly authorizes a taxpayer to maintain an action for the prevention and restraint of any illegal official act ’ on the part of the officers of any county, town or municipal corporation ; and if the intended and threatened act of the defendant, as county treasurer, is illegal, the plaintiff is entitled to sue and t,o prevent the meditated violation of law, irrespective of the consequences of such violation. The statute assumes that any illegal official act is or may be injurious to the corporation when done by its servant, and allows him to be restrained simply because of the illegality.” (See, also, Osterhoudt v. Rigney, supra, 231.) And in the case of Ziegler v. Chapin (126 N. Y. 342, 347) the same learned jurist says: “ The suit is brought by a taxpayer of the city of Brooklyn to prevent such purchase as being illegal and unauthorized and amounting to a waste of the property and funds of the city, and it was a proper and reasonable exercise of discretion on the part of the court to restrain the purchase pending the litigation in aid of the plaintiff’s remedy, unless we are able to see on an examination of the complaint that he is clearly and certainly not entitled to the ultimate relief which he seeks.” (See Gerlach v. Brandreth, 34 App. Div. 197, 199; Bush v. O'Brien, 164 N. Y. 205, 215.) The theory of the law is that the taxpayer, as the ultimate bearer of the burdens of the municipality (Ayers v. Lawrence, supra; Osterhoudt v. Rigney, supra), shall have a remedy against the illegal official acts which tend to waste the property of the public and to impose unjust burdens upon the taxpayer (Gorden v. Strong, supra, 408; Bush v. O'Brien, supra; Wenk v. City of New York, 171 N. Y. 607, 614, 615, and authorities cited; Talcott v. City of Buffalo, 125 id. 280, 288), and where the act is illegal the law presumes that injury may result to the corporation and through the corporation to the individuals who must pay the taxes for the support of the municipality. (Warrin v. Baldwin, supra; Ayers v. Lawrence, supra.)

Having in mind that the law is designed for the protection of taxpayers, it should be remembered that the only warrant for the imposition of a tax or a burden upon the citizen or his property without his consent must be found in some positive law, and that it cannot be enforced unless imposed in the manner pointed out by the statute (Sanders v. Downs, 141 N. Y. 422, 424; Schneider v. City of Rochester, 160 id. 165, 172, and authorities there cited), so that the plaintiff upon this appeal has a right to urge any illegality or omissions in the official acts of the defendants which it might urge in defense of its property in an action for ejectment under a tax title, for the technical but sound reason that the provisions of the statute intended for his protection have not been observed. (Moore v. Mayor, 73 N. Y. 238; Matter of Smith, 52 id. 526; Matter of Pennie, 108 id. 364, 373, and authorities there cited; Matter of Douglass, 46 id. 42.) In the latter case it is said (p. 44): “ Municipal, like private corporations, must act within the limitations prescribed by the sovereign power; and they cannot impose a charge upon the person or property of individuals unless they proceed in the manner prescribed by law.”

In the case at har the defendant, the commissioner of water supply, gas and electricity, is seeking to purchase certain property for the city of New York, which will impose a burden of taxation upon this plaintiff; he is taking steps which are preliminary to the levying of a tax upon the property of the plaintiff, in common with other taxpayers of the city of New York, and which will, if not prevented, compel the plaintiff to part with its money or property, and the question here presented is whether the defendants have taken the necessary steps provided by law to thus impose this burden.

The authority of a municipal corporation to take private property must be expressly conferred, and the power and manner of its exercise strictly pursued. (Schneider v. City of Rochester, supra.) It is not material whether the property, of the individual is taken in the form of taxes or real estate, for in either case they must be taken for public purposes, and can be based only upon the theory that the person contributing taxes or other property is receiving a just condensation for the same. “ The power to levy assessments exists only where it is distinctly conferred by legislative authority,” say the court in Stebbins v. Kay (123 N. Y. 31, 35). “ Where the mode is prescribed in which the power is to be exercised it must be followed. The mode in such cases constitutes an essential element in the proceeding. Especially, where one claims to hold another’s property under a sale for taxes, must one show that every provision designed for the security of the taxpayer has been substantially complied with. Every such provision is mandatory. It is not for the courts to say that the same protection may be obtained by other means. That which the Legislature has djlrected, courts cannot declare immaterial.’ (Merritt v. Village of Portchester, 71 N. Y. 309.) No presumption will take the place of the act required.” (See May v. Traphagen, 139 N. Y. 478, 481.)

In Sharp v. Speir (4 Hill, 76, 86), a leading case upon the question here under consideration, the court say: “ Every statute authority, in derogation of the common law, to divest the title of one and transfer it to another, must be strictly pursued, or the title will not pass. This is a mere naked power in the corporation, and its due execution is not to be made out by intendment; it must be proved. It is not a case for presuming that public officers have done their duty, but what they have in fact done must be shown.” So in the case of Deputron v. Young (134 U. S. 241, 256) it is said that the rule is well settled that in the case of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of that power should precede it.’ ” In Burke v. Burke (170 Mass. 499, 500) the court say: “ When one seeks to show that the title of another has passed to himself by virtue of statutory proceedings, he cannot prevail without proving that everything has been done which the statute calls for as a condition precedent to the transfer of the property.”

The right to levy a tax upon the property of the plaintiff, in common with other taxpayers, for the purchase of real estate or water rights, is conditioned upon the performance of the prerequisites prescribed by the laws of this State; it is a mere naked jjower, depending wholly upon statutory authority, and the creation of specific means excludes others. (Wells v. Town of Salina, 119 N. Y. 280, 296; People ex rel. City of Rochester v. Briggs, 50 id. 553, 559; Mayor v. Ray, 19 Wall. 468, 475.) If, therefore, “ an act for the protection of taxpayers ” is to accomplish its purpose and protect taxpayers, the courts must intervene whenever it is made to appear, in a proper action, that the person or officer assuming to act in behalf of a municipal corporation is involving the corporation in an indebtedness to be met by taxation, or by the use of the public funds, in a manner not authorized by the law. The rule, as we have already pointed out, is well settled that the “ authority of a municipal cor7 poration to take private property must be expressly conferred, and the power and manner of its exercise strictly pursued.” (Schneider v. City of Rochester, supra, 172, and authorities there cited.) As has been so well said in Guest v. City of Brooklyn (69 N. Y. 506, 517): “ We should regard a departure by the courts from rules of law wisely established for the protection of all, to meet the equities of a particular case or class of cases, as a far greater evil than that sought to be remedied. Courts can confine the Legislature within constitutional authority; and, when the questions are legitimately up, can and do exact a strict compliance with all the requirements of law leading to a forcible taking of the property of the citizen, but beyond this, they have no discretion, and are themselves bound to observe and enforce legislative provisions, whether they approve them or not.” (Karst v. Gane, 136 N. Y. 316, 321.) In the last cited case it is said that “ in recent times courts are less disposed than formerly to depart from or qualify the plain words of a statute in favor of what is termed an equitable construction, in order to take particular cases out of its operation upon some supposed view of policy not indicated in the act itself.”

Having thus called attention to the rules of law governing the conduct of municipal corporations and those acting or pretending to act in their behalf, let us consider the facts in this case. The plaintiff owns a water works plant near Valley Stream, in the county of Nassau, and supplies the fifth ward of the borough of Queens in the city of New York and a number of villages in the county of Nassau. The watershed from which the plaintiff secures its water supply is located between the two watersheds which supply respectively the city’s Valley Stream reservoir and Hempstead reservoir. The city proposes to build what is known as a filtering gallery directly across the watershed of the plaintiff, and thus, it is alleged, intercejDt substantially all of the water which falls upon said watershed, but we are not concerned with this view of the question at this time. It appears that the commissioner of water supply, gas and electricity of the city of New York prepared a map showing certain parcels of land on the plaintiff’s watershed and that the board of estimate and apportionment approved said map and authorized the commissioner to purchase the land shown thereon at private sale for the purpose of increasing the water supply of the city of New York. The resolution of the board of estimate and apportionment purports to be adopted pursuant to section 507 of the Revised Greater New York charter (Laws of 1901, chap. 466), and it is not questioned that the map therein referred to had not, prior to its adoption, been open to public inspection, and that the board had not afforded persons interested a full opportunity to be heard respecting the map and. the acquisition of the real estate shown thereon, and had not given public notice of a hearing respecting the same as required by section 486 of the revised charter. The question presented on this appeal is whether the commissioner of water supply, gas and electricity, with the approval of the board of estimate and apportionment, has the right to purchase at private sale real estate for the purpose of increasing the water supply of the city without giving public notice and an opportunity to persons interested to be heard before such purchase and before the final adoption of the map showing the land proposed to be purchased. The learned court at Special Term held that section 517 of the revised charter preserved to the commissioner of water supply, gas and electricity of the city of New York the power to purchase land for water supply purposes, and that the provisions of section 486 of the revised charter for notice and hearing before the final adoption of the map of the land proposed to be acquired applied, so far as land to be acquired for the extension of the Brooklyn water system was concerned, only wdien such land was to be acquired by condemnation proceedings. It was also held that while the charter of the city of Brooklyn (Laws of 1888, chap. 583, tit. 15, § 11) required the concurrence of the common council before the commissioner of city works could purchase land for Brooklyn’s water supply, and while section 42 of the Revised Greater New York charter devolved upon the board of aldermen all the powers and duties which, at the time of consolidation, were conferred upon the common council of Brooklyn, except as otherwise provided in the revised charter, section 507 of the revised charter devolved that particular function of the common council upon the board of estimate and apportionment. Holding this view, the learned court denied the plaintiff’s motion for a writ of injunction 2>endente lite, and from that order the latter appeals to this court.

If the Legislature intended this result it has carefully veiled that intention. All of title 2 of chapter 11 of the Revised Greater New York charter, covering sections 468 to 531, both inclusive, is devoted to the department of water supply, gas and electricity, which department is to be under the control of a commissioner, and a complete scheme for the maintenance of the old water plants and the construction of new or additional plants and the purchases incident thereto, is provided. Section 469 gives the commissioner general jurisdiction of the structures, property, etc., and of the maintenance ol an adequate supply of water. Section 472 provides that the commissioner, with the approval of the board of estimate and apportionment, shall have power within and throughout the State of New York to select and to determine all sources of water supply that may be needed for the supply of the public water works of said city; that any sources of water so selected and determined by him shall be deemed necessary for the public use of the city, and thereupon, with the approval of the board of estimate and apportionment, together with the authority of the board of aldermen, expressed by its resolution or ordinance, it shall be lawful for the city of New York to acquire by condemnation any real estate or any interest therein that may be necessary in order to acquire the sole and exclusive property in such source or sources of water supply, and to wholly extinguish the water rights of any other person or corporation therein, with the right to lay, relay, repair and maintain aqueducts, etc., and if necessary to acquire by condemnation lands for such purpose in any county or counties through which it may be necessary to pass in conducting such waters, not to any particular borough, but to the city of New York. This section details further matters in this connection not necessary to be set out here, and section 471 provides that it shall not be lawful for the commissioner of water supply, gas and electricity .to “ enter into any contract whatever with any person or corporation engaged in the business of supplying or selling water for private or public use and consumption,” without the consent of the board of estimate and apportionment, and the written consent and approval of the mayor and the comptroller of the city. The section further provides that “ it shall not be lawful for the said city of New York or for any department thereof, to make any contract touching or concerning the public water supply, and especially the increase thereof, with any person or corporation whatsoever, save in accordance with the provisions and requirements of this act, which said provisions and requirements are hereby declared to establish the exclusive rule for the making of such contracts.” With this language in mind, how can it be said that section 517 could give the commissioner of water supply, gas and electricity any power to make a contract for the purchase of land for the extension of the water supply system of the borough of Brooklyn, except under the restrictions imposed by title 2 of chapter 11 of the revised charter ? Section 517 provides: For all the purposes of this act all of the rights, powers, privileges, duties and obligations, heretofore created by law or otherwise, of the city of Brooklyn, or of any of its departments or officers respecting the water-works of said city are, so far as they are consistent with the provisions of this act, hereby vested in The City of New York, as constituted by this act, and as matter of administration devolved upon the commissioner of water supply, gas and electricity of The City of New York to be by him exercised in accordance with the provisions, directions and limitations of this act.” Assuming that the commissioner of city works of the city of Brooklyn had the power, without the concurrence or approval of the common council, to purchase real estate for the purpose of increasing the water supply, does this operate to devolve such unlimited power upon the water commissioner of the city of New York? We think not. The rights, powers, privileges, duties and obligations, “ so far as they are consistent with the provisions of this act,” are vested, not in the commissioner, but in the City of New York, as constituted by this act, and as matter of administration devolved upon the commissioner,” to be by him exercised in accordance, not with the previous conduct of the commissioner of city works of the city of Brooklyn, but “ with the provisions, directions and limitations of this act,” which unquestionably refers to the provisions of section 471, in common with all other sections of the revised charter in reference to the water supply. But section 11, title 15 of chapter 583 of the Laws of 1888, shows that the power of the commissioner of city works was not absolute; he was authorized “ by and with the consent of the common council,” from time to time “ to purchase such additional land, and under existing provisions of law extinguish such additional water rights as may he necessary for the use, protection or extension of the water works of the city of Brooklyn.” It appears, therefore, that the only power devolved upon the city of New York, to be administered by the commissioner of water supply, gas and electricity (conceding that all of such powers devolved without other limitations), was a power to purchase property at private sale with the approval of the common council. By the provisions of section 42 of the revised charter all the powers and duties which on December thirty-first, eighteen hundred and ninety-seven, were conferred or charged upon * * * the common council of the city of Brooklyn or of Long Island City, or upon any board, body or officer of any of the municipal and public corporations or parts thereof, consolidated with The City of New York, as heretofore known and bounded, and all the powers and duties which on January first, nineteen hundred and two, are conferred or charged upon the municipal assembly of The City of New York shall be exercised and performed by the board of aldermen of The City of New York,- as hereby constituted, subject, nevertheless, to the power of approval or disapproval by the mayor of said city, as provided in this act.” All of the powers and duties of the common council of the city of Brooklyn, including the power to consent to the purchase of property for extending the water system, if this is not governed by the general scheme provided in the revised charter, must have devolved upon the board of aldermen of the city of New York, so that if the source of power be the original powers of the commissioner of city works of the city of Brooklyn, the commissioner of water supply, gas and electricity can have only the power to purchase private property at private sale, subject to the approval of the board of aldermen, and it is not suggested that the acts of the commissioner here complained of have such sanction.

It seems to us entirely obvious, however, that the only authority for the purchase of property in connection with the increase of the water supply of the city of New York, whether it be in the borough of Brooklyn or in The Bronx, must be found in the provisions of the revised charter dealing with this general subject, and not in the devolved powers, for it is specially provided by section 471 that no contract in relation to the matter shall be made save in accordance with the provisions and requirements of this act.” Have these provisions and requirements been complied with? Section 484 authorizes the commissioner “ for and in behalf, and in the name of The City of New York, in the manner hereinafter prescribed, to acquire all rights, titles and interests in and to such real estate, by whomsoever the same may be held, enjoyed or claimed, and to pay for and extinguish all claims or damages on account of such rights, titles or interests, or growing out of such taking or using.” This does not say how he shall acquire the property ; it merely authorizes him to acquire it in the manner hereinafter prescribed, whether by condemnation or by private purchase. Section 485 defines “real estate” as used in this chapter of the revised charter (Chap. 11), and makes it include all rights in lands and waters appurtenant thereto. Section 486 provides that whenever in the opinion of said commissioner it is necessary to acquire any such real estate for any of the purposes hereinbefore set forth, or for the purpose of extinguishing any right, title or interest thereto or therein, the said commissioner, for and on behalf of the city of New York, shall prepare a map or maps of the real estate which in his opinion it is necessary to acquire for the purposes hereinbefore set forth, and shall submit the same to the board .of estimate and apportionment for approval. It should be borne in mind that it is made the duty of the commissioner to prepare this map whenever in his opinion it “ is necessary to acquire any such real estate; ” that is the test, the necessity for the acquirement of such real estate, and not the method of its acquirement. The section further provides that the said board may adopt or modify the map or maps or reject them, " and that a “ copy of the map or maps so prepared, with a certificate of the adoption thereof, signed by the commissioner and the mayor, shall be filed in the office of said commissioner and be open to public inspection, and shall be the map or maps of the real estate to be acquired, subject to such changes or modifications as the said commissioner may from time to time deem necessary for the more efficient carrying out of the provisions of this act. And the said board of estimate and apportionment, prior to the final adoption of such map or maps, shall afford to all persons interested a full opportunity to be heard respecting such map or maps and the acquisition of the real estate shown thereon, and shall give public notice of such hearing, by publishing a notice, once in each week, for three successive weeks in the City Record, and the corporation newspapers, and in two papers published in the county or counties in which the real estate to be acquired or affected is situated, and in two daily papers in The City of New York.” Section 487 authorizes the commissioner, his agents and servants, to enter upon such real estate for the purpose of making surveys, etc., and section 488 provides that after the final adoption of said map or maps the said commissioner shall prepare six similar maps or plans of the proposed site of any dam, reservoir, aqueduct, sluice, culvert, canal, pumping works, bridges, tunnels, blow-offs, ventilating shafts, and other necessary appurtenances for the proper completion of the work so proposed by him. It also provides that these maps shall indicate what portions are to be taken in fee and what are to be taken only in part, and that the maps, when adopted by the commissioner and board of estimate and apportionment, shall be by said commissioner transmitted to the corporation counsel, with a certificate of approval written thereon and signed by the said commissioner and the mayor. By section 489 it is made the duty of the corporation counsel to cause one of said maps to be filed in the office of the clerk of each county in which any real estate laid out on said maps shall be located, except that in any county in which there may be a register’s office the said map shall be filed therein. Sections 490 to 506, inclusive, provide the details for giving notice of intention of applying for commissioners of appraisal and the various matters incident to the taking of private property under the power of eminent domain, and section 507 provides as follows: “ The said commissioner of water supply, gas and electricity, subject to the approval of the board of estimate and apportionment, may agree with the owners or persons interested in any real estate laid down on said maps as to the amount of compensation to be paid to such owners or persons interested for the taking or using and occupying such real estate.”

Can there be any reasonable doubt that the Legislature intended, in using the words “ any real estate laid down on said maps,” to confine the powers of the commissioner and board of estimate and apportionment to the maps provided for in the sections cited? The rule is elementary that effect must be given to the whole of the language used, if it be plain and do not lead to anything manifestly so unjust or absurd that it cannot be assumed the Legislature really intended such result. (Mayor v. Manhattan R. Co., 143 N. Y. 1, 21; People ex rel. Killeen v. Angle, 109 id. 564, 575.) In the latter case it was said: It is a primary rule of construction that statutes must be so interpreted as to give effect to every part thereof and leave each part some office to perform; and any construction which deprives any part of a statute of effect and meaning, when it is susceptible of another interpretation, is wholly without support from any authority.” In the statute, as we construe it, there is no difficulty in giving effect to every clause and word; it provides, first, a scheme for determining what lands or real estate as defined in the statute are necessary for the uses of the city for a water supply; second, it provides for describing and fixing the boundaries of such real estate and giving public notice of an intention to take the same for the city. This is intended to allow the public, or those interested, to appear before the commissioner and the board of estimate and apportionment and to present for their consideration such matters as may be pertinent to the question, whether on the score of public economy or private convenience. Then there are the provisions for taking the property under the power of eminent domain, a necesssary power to prevent extortionate and unconscionable demands on the part of property owners within the lines marked out for acquisition, and this is followed by a provision in section 507 that the commissioner, with the approval of the board of estimate and apportionment, may agree with the owners or persons interested in “ any real estate laid down on said maps as to the amount of compensation,” etc. He has no power to purchase land generally; it is only such real estate as has been determined to be necessary for the city to acquire, and until the map or maps have been prepared and approved, with all of the formalities provided by sections 486, 488 and 489, the commissioner has no jurisdiction to make any purchases of real estate whatever, and because it is conceded that the commissioner and board of estimate and apportionment have not complied with these provisions, and that the notice and opportunity to be heard have not been afforded, the plaintiff in this action, being a taxpayer, within the provisions of the statute, has a right to be protected against the imposition of any burden for the payment of the contract price of the property proposed to be purchased at private sale. It had a right to this protection, as we have already pointed out, because the statute presumes that injury or waste may result from any illegal action on the part of corporation servants, and for the technical, but sound, reason that the provisions of the statutes enacted for the protection of taxpayers against abuses on the part of public servants have not been complied with. (Moore v. Mayor, 73 N. Y. 238, 250; Matter of Pennie, 108 id. 364, 373.)

The order appealed from should be reversed and the injunction should be granted.

Goodrich, P. J., and Hooker, J., concurred; Bartlett and Hirschberg, JJ., dissented on the grounds briefly stated in the opinion of Mr. Justice Wilmot M. Smith at Special Term.

Order reversed and motion for injunction granted, with costs to ■abide the final award of costs. 
      
       Opinions of Mr. Justice Wilmot M. Smith on denial of motion at Special ‘Term:
      Smith, J.:
      In my opinion the power of the city of Brooklyn to purchase land at private sale for the purpose of extending its water supply, which existed at the time of consolidation, was intended to he preserved by section 517 of the charter, and that the provisions of the charterf for notice and hearing before the final adoption of the map of the land proposed to be acquired apply, as far as land to be acquired for the extension of the Brooklyn water system is concerned, only when land is to be acquired by condemnation proceedings.
      Motion denied.
      Second opinion of Mr. Justice Wilmot M. Smith:
      Upon this motion the court has decided that the power of the city of Brooklyn to purchase land at private sale, for the purpose of extending its water supply which existed at the time of the consolidation, was intended to be preserved to the city of New York by section 517 of the charter. Counsel for the plaintiff now calls the attention of the court to the Brooklyn charter (Laws of 1888, chap. 583, tit. 15, § 11) which provides that the commissioner of city works, by and with the consent of the common council, is authorized to purchase additional lands, and that section 42 of the Greater New York charter devolves upon the present board of aldermen all powers and duties which formerly were conferred upon the common council of the city of Brooklyn, and that, therefore, if it has the power to purchase land at private sale under section 517, it can only be exercised with the consent of the hoard of aldermen, which has not been obtained in this case. Section 42 of the Greater New York charter does devolve upon the board of aldermen of the city of New York all powers and duties which at the time of the consolidation were conferred upon the common council of the city of Brooklyn, except “as otherwise provided in this act.” Section 507 of the charter provides that such commissioner of water supply, gas and electricity, subject to the approval of the board of estimate and apportionment, may agree with the owners or persons interested in any real estate laid down on said maps as to the amount of compensation to be paid to such owners or persons interested for the taking, using and occupying such real estate. The corporation counsel contends, and I think his contention is sound, that this provision in section 507 deprives the board of aldermen of any authority in the premises.
      It seems to me it was the intention of the charter to make any contract entered into by the commissioner of water supply for the purchase of real estate to extend the water supply subject only to the approval of the board of estimate and apportionment.
      Motion denied, without costs.
     
      
       Laws of 1901, chap. 466.— [Rep.
     
      
       Law’s of 1901, chap. 466.— [Rep.
     