McNeil v. Board of Supervisors

The plaintiff appeals from an order denying his motion that certain persons be brought in as parties defendant, that a supplemental summons issue and be served upon them, and that leave be granted to serve a proposed supplemental complaint upon the defendant and such proposed parties. The action was brought to restrain the defendant from auditing, directing, or allowing the payment of certain claims based upon rewards offered by the district attorney of Suffolk county to persons furnishing evidence upon which convictions were had of persons "violating the provisions of chapter 625, p. 1418, of the Laws of 1903, known as the “Bailey Law,” and chapter 538, p. 1311, of the Laws of 1904, known as the “Motor Vehicle Law.”

The plaintiff, who sues as a taxpayer, has obtained an injunction order restraining the defendant during the pendency of the action from auditing, allowing, or directing the payment of the claims or rewards recited in the complaint. Upon a trial of the action the complaint was dismissed, and judgment entered in defendant’s favor, which was reversed by this court on appeal ( 114 App. Div. 761 , 100 N. Y. Supp. 239 ), and a new trial ordered. Subsequent to the time when the complaint was dismissed, and a few days prior to the entry of judgment, the defendant audited and allowed the claims and issued drafts for the payment of the same to 10 claimants, amounting to $2,300, which were paid on presentation by the county treasurer, and such sum thereafter, levied and assessed against the towns in said county, and collected. The persons to whom such payments were made were deputy sheriffs and constables of said county, and the persons sought to be brought in as additional parties defendant are the county treasurer making such payments and the persons receiving and retaining the same. We held, on the former appeal that neither the defendant nor the district attorney had any authority in law to offer these rewards, that they were not a valid county charge, and that the defendant had no jurisdiction or authority to audit or direct their payment. The proposed supplemental, complaint alleges such audit, allowance, and payment by the defendant and county treasurer to be illegal official acts, beyond the powers conferred upon them by law, and not charges which the said board of supervisors had authority to allow or direct paid, either in whole or in part, and that the allowing and payment of said claims by the defendant and county treas

The allegations of the supplemental complaint clearly bring the action within the provisions of chapter 531, p. 709, of the Laws of 1881, as amended by chapter 301, p. 620, of the Laws of 1892, and, if sustained by evidence upon a trial, would entitle the plaintiff to the relief demanded; but it is contended that the audit and payment arose after the commencement of the action and constitute an entirely different and new cause of action from that originally alleged, that some of the persons sought to be brought in as additional parties defendant had no interest in the original cause of action, and that demands are sought to be enforced against all of the defendants which did not exist when the action was commenced (the relief asked being different and against different parties), by reason of which such supplemental complaint is not authorized, and the relief demanded is not within the power of the courts to grant; and Bush v. O’Brien, 58 App. Div. 118 , 68 N. Y. Supp. 651 , is cited in support of this contention. This decision was by a divided court. The facts were that several judgments were entered against the city of New York upon offers of judgment made by the corporation counsel, after the entry of which a motion was made in behalf of the city to vacate and set them aside upon the ground that they were improperly and irregularly entered, which motion was denied at Special Term, and its decision affirmed by the Appellate Division and Court of Appeals, after which the action was commenced and a temporary injunction granted restraining the judgment creditors from attempting to collect their judgments, which injunction was subsequently vacated. Thereafter peremptory writs of mandamus were issued to the comptroller, commanding the payment of said judgments, which he did. Afterwards a motion was made to bring in additional parties defendant and for leave to serve a supplemental summons and complaint, upon the ground that since the commencement of the action the judgments (payment of which it was sought to restrain) had been paid and satisfied of record, and that such payments or a part thereof had been received by the persons sought to be brought in as parties defendant. The motion was denied, upon the ground that the supplemental complaint stated an entirely new and different cause of action from that which existed when the action was commenced, and did not aver anything supplemental to the cause of action existing when- the original action was commenced. Here no new cause of action is alleged in the proposed supplemental complaint,- but rather additional facts to the effect that since the commencement of the action the claims, the audit and payment of which it was sought to restrain, have been paid, and from the time of such payment the only relief applicable or appropriate to the action is the restitution provided for by the statute under the provisions of which the action is brought. The read

The order must be reversed, with costs, and the order applied for at Special Term granted, with costs.

Order reversed, with $10 costs and disbursements, and motion granted, with costs.

HOOKER, GAYNOR, and MILLER, JJ., concur. HIRSCHBERG, P. J., concurs in result.