Tifft v. City of Buffalo — 65 Barb. 460

Majority

p. 460

George W. Tifft, in behalf of himself and others, vs. The City of Buffalo, The Mayor and Common Council of the City of Buffalo, and The Union Hotel Company.

Headnote

A tax-payer, at large, of a municipality, having no private interest in the question, more than other tax-payers, cannot maintain an action in equity, as against the public authorities, to set aside or prevent acts claimed to be illegal.

In an action brought by the plaintiff in behalf of himself and other tax-payers of a city, to restrain the common council from selling to a hotel company a park or square in said city, called “ Court House Square,” the complaint did not allege that the plaintiff owned any land fronting on said park; and although he was a resident citizen and a tax-payer in said city, and owned land in the vicinity of said park, he had no private interest in such park or square, more than the citizens generally of the city; held that the plaintiff had no standing- in a court of equity entitling him to maintain the action, and that an injunction granted therein, was improperly granted and continued.

APPEAL from an order of the Superior Court of Buffalo, continuing an injunction in an action commenced in that court and duly transferred to this court, because two of the judges of the Superior Court were disqualified from hearing the appeal.

The defendants claimed that the plaintiff did not, in his complaint, set forth any facts showing he had such an interest as is necessary to maintain this action. The premises are a city park. The legislature authorized the city to sell it. {Laws of 1872, vol. 1, p. 1018.) The defendants insisted that the plaintiff had not any interest other than that of a tax-payer, and such as he had as a general citizen of the city. The plaintiff is not interested in any land abutting on this park. There are streets entirely around the park or square.

John Ganson, for the appellants.

W. H. Green, for the respondents.

This action was commenced to restrain the common council of the city of Buffalo from selling to the defendants, The Union Hotel Co., the park or square known in said city as Court House Square. The said square is described in the complaint as the piece or parcel of land known or designated as the “Court House Square or park, situate between Main and Washington streets, on the east and west, and between La Fayette and Clinton streets on the north and south.” The complaint does not state that the plaintiff owns any land fronting on said park, on either Main, Washington, Clinton or La Fayette streets. He is a resident citizen, and a tax-payer in said city, and owned land therein, fronting on both Main and Washington streets in the vicinity of said park, but has no private interest therein, more than the citizens generally of said city of Buffalo. In the case of Roosevelt v. Draper, ( 23 N. Y. 323 ,) Judge Denio, in giving the opinion of the Court of Appeals, said: “We have decided, upon full consideration that it requires some individual interest distinct from that which belongs to every inhabitant of the town or county, to give the party complaining a standing in court, where it is an alleged delinquency in the administration of public affairs which is called in questionand cites Doolittle v. The Sups. of Broome, ( 18 N. Y. 155 .) The question whether a tax-payer at large, of a municipality, having no private interest in the question, inore than other tax-payers, can maintain an action in equity, as against the public authorities, to set aside or prevent illegal acts, has recently been carefully considered by this court, and the views of the above cited cases followed and asserted, in the case of Ayres v. Lawrence, ( 63 Barb. 458 .) In accord-, anee with these views, we think the plaintiff has no standing in a court of equity entitling him to maintain this action ; and that the injunction granted in the cause

p. 462

was erroneously granted and continued; and that the order continuing the same should be reversed. And it is so ordered, with costs of the appeal.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin Talcott and JS.

Cases cited

Doolittle v. Supervisors of Broome County 18 N. Y. 155 N.Y. p. 460