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to carry out the purpose of this act.” In fact, the whole performance of the work, including the determination of the character of the proposed improvement, is given to these commissioners.

The plaintiff is a steam railroad company operating its lines in said city; owning valuable property therein, and contributing to the tax levies annually more than $80,000. On the 8th day of February, 1896, the said grade crossing commissioners, in the execution of the plan for regulating crossings at grade, entered into a written agreement with the plaintiff pertaining to the several streets of the city crossed by its tracks. The eleventh paragraph of said agreement, so far as pertinent, is as follows:

"It is agreed that all the work described in the Section of the General Plan under the heading 'Perry Street-Erie R. R.,' as shown on Detail Plan No. 8, shall not be undertaken by the City or Company for the present, but that the consideration thereof shall be deferred until the work on the other streets is finished

and until it shall be determined by two-thirds of the commissioners that the construction of said work is necessary.”

At the time of the commencement of this action the subway at Williams street and the footbridge at Fulton street, and each of which was "work on the other streets" referred to in said eleventh paragraph, had not been commenced. The viaduct at Van Rensselaer street, also referred to, was unfinished at the time of the commencement of the action, but was completed before the decision was rendered. The contract mentioned apportioned the cost of the improvement between the city and the plaintiff. Such cost was first to be borne by the city, and its bonds were to be sold at public auction, after a stipulated manner and time of advertising, to the highest bidder therefor, to provide a fund to meet such obligations. The plaintiff was to be credited for its share of whatever premium was received on any sale of said bonds. The company was to pay its portion of the cost of the improvement to the city in 20 equal, annual installments, with the same rate of interest as said bonds bore. "Contrary to the provisions of said agreement,” in 1902 the said commissioners advertised for bids for the construction of a viaduct over the plaintiff's tracks in Perry street; and in March, 1903, a resolution was duly passed, directing "that the work shall now be done." Bids were received, and the contract let to the lowest bidder, for $150,203.50. The aliquot portion of which was ultimately chargeable to the plaintiff by its agreement was $109,806.57, and the bonds were subsequently sold at a premium of .00113, which was an "unusually low price." The cost of the material and labor at the time of such bidding was "unusually high," and later said viaduct could have been built "for a considerable reduction." This action was commenced by the plaintiff, as a taxpayer, pursuant to section 1925 of the Code of Civil Procedure, to restrain the defendants from taking any steps toward the letting of any contract for the carrying on of said work, and from raising any funds to pay therefor.

The facts above mentioned are fully set out in the complaint, and have been found by the trial court in its decision ; but the complaint was dismissed upon the ground that the acts of the defendants "will not constitute and warrant a fraudulent waste of public funds," and that the plaintiff has an adequate remedy at law.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISČOCK, and STOVER, JJ.

William L. Marcy, for appellant.
Spencer Clinton, for respondents.

SPRING, J. Section 1925 of the Code of Civil Procedure permits an action to be maintained against a municipal body or its agent by a taxpayer thereof to prevent waste of the property of such municipality. The essence of the action is the fraud or bad faith of the public official, or some unlawful action which is sought to be prohibited. Talcott v. City of Buffalo et al., 125 N. Y. 280, 26 N. E. 263; Ziegler v. Chapin et al., 126 N. Y. 342-348, 27 N. E. 471; Kittinger v. Bufand 123 New York State Reporter falo Traction Co., 160 N. Y. 377-387, 54 N. E. 1081; Govers v. Board of Supervisors of Westchester County, 171 N. Y. 403–408, 64 N. E. 193.

Fraud or bad faith is not charged against the defendants, but it is claimed that they have violated the agreement above mentioned; and it is contended that the expenditure of moneys in consequence of that violation will be an illegal expenditure or waste of the public moneys, a portion of which the plaintiff, as a taxpayer, will be called upon to pay.

Waiving for the present any consideration of the aspect of the case as it may be controlled by the contract, there is no invalidity in the action of the grade crossing commissioners, even though the time chosen for the sale of the bonds and the letting of the contract for the construction of the Perry Street Viaduct may have been inopportune, because of the excessively high cost of labor and materials. The grade crossing act commits to the discretion of the commissioners, among other things, the determination of the proper time to prosecute any of the work essential or proper to the development of the general plan. They may act unwisely; their judgment may be ill-advised, and the expenditures improvident or extravagant; but, if they keep within the purview of their authority, and are clear of the imputation of bad faith or collusion or fraud, their proceedings are not subject to review by a taxpayers' action. Ziegler v. Chapin et al., 126 N. Y. 342, 27 N. E. 471; Talcott et al. v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263; Weston v. City of Syracuse, 158 N. Y. 274, 53 N. E. 12, 43 L. R. A. 678, 70 Am. St. Rep. 472.

The court, in the Ziegler case, in considering the scope of this action, say at page 349, 126 N. Y., and page 472, 27 N. E.:

“The Legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a taxpayer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents."

In the Talcott Case, after an extended discussion of the origin and import of the policy ingrafted on section 1925 of the Code of Civil Procedure, the court sums up the conclusion of its examination at page 288, 125 N. Y., and page 265, 26 N. E.:

“We have referred to the origin of this statute under which the action is brought, the title of the act of 1872 [Laws 1872, p. 467, c. 161), and the language used by the Legislature subsequently, when re-enacting it in 1881 [Laws 1881, p. 709, c. 531] and 1887 [Laws 1887, p. 885, c. 673), for the purpose of ascertaining whether it was intended to authorize a taxpayer to maintain an action against the members of the common counsel in a city, and the administrative officers thereof, for the purpose of restraining officials acting within the limits and scope of their powers and discretion, such as is alleged in the complaint in this action, and we are of the opinion that it was not. Full force and effect can be given to the statute by confining it to a case where the acts complained of are without power, or where corruption, fraud, or bad faith amounting to fraud, is charged. Any other construction would subject the discretionary action of all local officers and municipal bodies to review by the courts at the suit of the taxpayers."

Any other rule would bear fruit in countless litigation, imperiling the discretionary power of the municipal officers charged with the performance of administrative functions. Such officers are selected to represent the people of the municipality, and if they act honestly, and do not transcend the limits of their authority, their acts are amenable to condemnation or approval only when any such official may be presented for re-election. His discretion, fairly exercised, is not to be challenged by the courts.

In the present action the trial court has found, and we assume, that the defendants, in selling their bonds and letting the contract, and in the other alleged acts preliminary to the construction of the viaduct, may be charged with the breach of the agreement with the plaintiff. If substantial loss results to one party to an agreement by its violation by the other party, a remedy is generally available to the one injured. The proposition, however, does not signify that, because the parties charged with the breach happen to be the officers of a municipality, a taxpayers' action will lie. That action, as already noted, is a statutory one, founded on the illegal or fraudulent conduct of an officer or body. The action is at the instance of any taxpayer in the taxpaying district. The building of the viaduct cannot be restrained by any other taxpayer of the city of Buffalo. His complaint would be that the expenditure is to be made at an unpropitious time, and that the grade crossing commissioners unwisely exercised the discretion committed to them; and, however grievous the injury, no action will lie. It was not intended that, because one taxpaying citizen or corporation entered into a contract which has been broken to his damage, he may obtain redress under the guise of a taxpayers' action, while no other taxpayer may avail himself of the same remedy. The invalidity which will sustain that action is the usurpation or transgression of authority intrusted to them. The failure to perform an executory agreement is not the illegality which the statute was intended to meet. Other ample remedies are available to one so injured, rather than by an action, the pith of which is official misconduct. The fact that the plaintiff has suffered by reason of the violation of the agreement does not give it any added privilege to resort to the statutory action. If it is likely to suffer damages by the unlawful waste of the property of the city, the plaintiff, as well as any other taxpayer, may maintain an action in equity against the offending officers to prevent the dissipation. That, however, is not the gravamen of the plaintiff's cause of action. It is seeking to enlarge the scope of the taxpayers' action to embrace a case dependent peculiarly upon its agreement, and which damages are exclusively for itself. We apprehend the statute is not sufficiently elastic for that purpose.

It is claimed that the plaintiff, as a taxpayer, will be compelled to contribute towards the expense of constructing the viaduct, and that this construction will be in violation of the agreement, and hence illegal. This contention overlooks the fundamental principle adverted to, that the grade crossing commissioners are vested with the exercise of their judgment in the development of the improvements committed to their charge. If they agree with the railroad company to build the viaduct of one kind of stone, but later decide, in good iaith, to use a more costly kind, the plaintiff or any other taxpayer and 123 New York State Reporter may not maintain a taxpayer's action to prevent the improvement. The discretion of the board must not be subjected to that restraint. The illegality which authorizes the maintenance of the action savors of bad faith-of a dishonest purpose—and is not analogous to a failure to pay a promissory note at maturity, or to build a house according to contract. The misconduct must be in violation of law or in defiance of a statute, and an excess of authority, to be unlawful. The gist of the charge is lacking in this case.

But it is suggested that the findings show that the city cannot recover of the plaintiff its quota of the cost of the improvement to be made, and consequently that the plaintiff or any other taxpayer may enjoin the prosecution of the work. Every omission or anticipated omission to perform their contract strictly does not put the grade crossing commissioners or the city of Buffalo at the mercy of a taxpayer who may seek by this form of action to stop any particular improvement which the commissioners undertake. They possess authority to do the work in their own way and time, and their contract with the plaintiff is within their power. Their failure to fulfill to the letter its provisions is not illegality akin to fraud or bad faith.

Again, it seems to me, the plaintiff has an adequate remedy at law for any damages it may suffer. Bear in mind, it contends that the defendants are seeking to raise money to construct a viaduct contrary to its agreement. An action in equity to enjoin the violation of an executory agreement, the damages for which breach are ascertainable, and may be compensated for in money, is not permissible, unless some peculiar necessity calls for it. By this agreement the plaintiff is to pay the city in a specific manner and in precise installments. If there is a refusal to pay, any defense which the plaintiff may have is available to it whenever the city endeavors to enforce payment pursuant to the agreement, and the damages, if any, may be easily measured and allowed. Waiving this suggestion, however, we think the action is not maintainable. The judgment should be affirmed, with costs.

Judgment affirmed. All concur, except WILLIAMS, J., who dissents, and HISCOCK, J., not voting.

(96 App. Div. 418.)

DENISON V. DENISON et al.

(Supreme Court, Appellate Division, First Department. July 13, 1904.)

1. WILLS-CONSTRUCTION-REMAINDER.

Decedent devised to his executors certain real estate in trust for the joint lives of his two daughters, P. and A., and the lives of the survivor of them, to pay the income, after paying taxes and repairs, to the use of P. during her natural life, and after her death, leaving A. surviving, during the life of A. to apply such surplus to the use of P.'s surviving children and the issue of such as may then be dead per stirpes, and on the death of the survivor of P. and A. to pay the trust res in fee to the children of P. and the issue of such as may be then deceased per stirpes. Held, that only those who survived the lives of both daughters in each case were entitled to share in the remainder of the trust fund.

2. SAME-VESTED ESTATE.

The remainder did not vest absolutely on the death of P. leaving A. surviving her, but only on the death of A. in the issue of P. then surviving

and the descendants of her issue surviving, per stirpes. 3. SAME-INCOME.

After the death of P. and during the life of A. the surplus income on the remainder did not vest in P.'s children. 4. SAMEJUDGMENT-APPEAL.

An unnecessary provision of a decision in an action to construe a testamentary trust not contained in the judgment appealed from could not be

modified on the appeal. 5. SAME-Costs.

Where a judicial construction of a testamentary trust became necessary by reason of conflicting claims to the income, and the construction of the will with reference to the remainder was incidental only, and made to avoid future litigation, and a decree requiring payment of costs out of the principal would necessitate a sale of the premises devised before the expiration of the trust, the costs would be charged against the income only. Appeal from Special Term, New York County.

Action by Dometille Denison, individually and as trustee under the will of Noel J. Becar, deceased, against William B. Denison and others. From a judgment in favor of plaintiff, defendants prosecute four separate appeals. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PAT-
TERSON, INGRAHAM, and LAUGHLIN, JJ.
Charles A. Runk, for appellant Denison.
Thomas W. Butts, for appellant Caroline H. Johnston.
Hugo Kohlmann, for appellant Colt.

Augustus N. Hand, for defendants Cameron and Alexander Duncan Cameron Arnold.

Frederick Geller, for Edward William Cameron Arnold.

LAUGHLIN, J. This action is brought by the plaintiff individually and as sole acting trustee under the ninth article of the last will and testament of Noel J. Becar, deceased, for the construction thereof. This article is as follows:

"Ninth. Item-I give and devise to my executors hereinafter named, or such of them as shall take upon themselves the execution of this will, one undivided third of my said two stores, Numbers Five and Seven (5 & 7) Dey street in the City of New York, to have and to hold to said executors, their survivors and successors, for and during the joint natural lives of my two daughters, Pauline and Adele and the lives of the survivor of them, in trust nevertheless to receive the rents and profits of the same, and from the proceeds to pay the taxes and assessments accruing on the same, and to keep the same insured against loss by fire and in good repair, and apply the surplus income in half yearly payments, or oftener, to the use of my said daughter Pauline during her natural life, to her sole and separate use and on her individual receipt, and from, and after her death leaving my said daughter Adele her surviving, then during the life of my said daughter Adele to apply said surplus income to the use of the children of my said daughter Pauline her surviving, and the issue of such as may then be deceased, share and share alike per stirpes and not per capita. Upon the death of the survivor of my two said daughters Pauline and Adele, then I devise said one-third of said two stores in fee to the children of my said daughter Pauline, and the issue of such as may be then deceased, share and share alike, per stirpes and not per capita."

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