#### R. Gordon McNeil, Appellant, *v.*The Board of Supervisors of the County of Suffolk, Respondent.

Second Department,

January 10, 1908.

Taxpayer’s action — suit to restrain illegal audit — audit and payment pending appeal — supplemental summons and complaint -bringing in claimants and asking restitution.

When, after the dismissal of the Complaint in a taxpayer’s action brought to. .restrain supervisors from auditing claims based upon rewards alleged tó be illegal, and pending the appeal from such dismissal, the supervisors have aud- ' tied the claims and the county treasurer paid the same, the plaintiff, after a decision on appeal that the claims were illegal, should be allowed to bring in • the claimants by supplemental summons and to serve a supplemental complaint demanding- that the money be returned to the county and that the plaintiff be reimbursed for the proportion illegally assessed against him .and collected.

Although the audit and payment aforesaid happened after the commencement of the taxpayer’s action to restrain the same, a supplemental, complaint setting forth the audit and payment and their illegality and asking restitution, does not set out a new and different cause of action from that originally-alleged. It merely states additional facts, happening-subsequent to the service of the original complaint, appropriate to a taxpayer’s action brought under chapter 531 of the Laws of 1881, as amended by chapter 301 of the Lavrs of 1892.

Appeal by the plaintiff, R. Gordon McNeil, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 2d day of February, 1907, •

*John J. Gunneen*[*William W. Niles*with him on the brief], for the appellant.

*Timothy M. Griffing,*for the respondent.

Rich, J.:

Tlie plaintiff appeals from an order denying 1ns 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 "áñ d "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. *623Suffolk county to persons furnishing evidence upon which convictions were had of persons violating the provisions of chapter 625 of the Laws of 1903,* known as the “ Bailey Law,” and chapter 538 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) 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 ten claimants, amounting to $2,300, which were paid on presentation by the county treasurer, and sucli 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 treasurer and the receipt and retention of said money by the other proposed defendants Were a waste of the public funds and properties of the county of Suffolk, etc. The relief demanded is, in part, fhe reimbursement and return to the treasury of said county of the $2,300 so illegally, paid out by the treasurer and received by' the claimants, and that therefrom the plaintiff be *624reimbursed' the money illegally assessed against and collected from him or his property.

The allegations of the supplemental complaint’ clearly bring the action within the provisions of chapter 531 of the Laws of 1881, as amended by chapter 301 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 he 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) is cited in support of this contention.. That decision was by a-divided court. The facts were that several judgments were entered -against the city .of Few 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 by the 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 f©r‘leave to serve a supplemental summons and complaint lipón .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 com*625menced, 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 reading of this statute clearly demonstrates its sole object and purpose to be the protection of taxpayers by preventing the' illegal use of public money or compelling its restoration when illegally paid, and I can see no valid reason why, when an action has been commenced' to restrain an illegal official act the result of which would be the illegal and unauthorized use of public money, and this result has been accomplished during the pendency of the action, appropriate allegations of such fact and a demand for such proper relief as the statute authorizes should not be alleged in a supplemental complaint, and, in the words of the statute, “ the person or party * * * receiving or retaining” such public money illegally be brought in as a party defendant and restitution compelled. This conclusion is supported by *Latham*v. *Richards*(15 Hun, 129) and the authorities therein . cited. It effectuates the obvious purpose and design of the statute by securing to taxpayers, without undue multiplicity of actions, the same result, viz., relief from contemplated or performed illegal official acts constituting waste of public money.

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

Hooker, Gaykor and Miller, JJ\, concurred; Hirsghberg, P. J., concurred in result.

Order 'reversed, with ten dollars costs and disbursements, and motion granted, with costs.

*

See Laws of 1904, chap. 540.— [Rep,