#### Michael Daly, Respondent, *v.*Joseph Haight, Individually and as Supervisor of the Town of Rye, Appellant, and Clement Archer and James D. Halstead, Appellants, and Peter H. Spader, Defendant, Together Composing and Constituting the Board of Town Auditors of the Town of Rye. (Action No. 2.)

Second Department,

June 12, 1914.

Pleading—taxpayer’s action — requisites of complaint—parties.

A taxpayer in order to maintain an action against the supervisor and auditors of a town must specifically allege facts which entitle him to maintain the action under the provisions of the statutes.

Persons to whom payments have been made by the supervisor of a town upon an alleged illegal audit by the board of auditors are necessary parties to a taxpayer’s action brought against the supervisor and board of auditors.

Complaint in an action brought by a taxpayer against the supervisor and auditors of a town examined, and *held,*that demurrers thereto should be sustained.

Appeal by the defendants, Joseph Haight and others, from orders of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of the county of Westchester on the 9th day of February, 1914, overruling their demurrers to the amended complaint.

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      *Henry C. Henderson [Walter A. Ferris, William A. Davidson*and *Moses Miller*with him on the brief], for the appellants.

*W. C. Prime [Ralph Earl Prime, Jr.,*with him on the brief], for the respondent.

Burr, J.:

This action is brought under the Taxpayers’ Acts (Gen. Mun. Law [Consol. Laws, chap. 24; Laws of 1909, chap. 29], § 51; Code Civ. Proc. § 1925) against Joseph Haight, as supervisor of the town of Rye; Clement Archer, Peter H. Spader and James D. Halstead, as "the board of town auditors of said town. Defendant Haight demurred upon the ground that there was a defect of parties defendant in that certain persons named in said complaint in the portions thereof designated as a second and third cause of action respectively, and who were alleged to be persons to whom, aftei-audit by the town auditors, claims illegal in character were paid by said supervisor, are not parties defendant to said action, and upon the further ground that causes of action have been improperly united.

Defendants Archer and Halstead demur upon the same grounds, and upon the further ground that the complaint does not state facts sufficient to constitute a cause of action against them. Each of said demurrers separately taken was overruled and separate orders entered herein. Each of said defendants separately appeals.

The complaint opens with four paragraphs, designated from 1 to 4 inclusive. This portion of the complaint contains allegations showing the official position of the various defendants, and that plaintiff is the owner of property within said town, whose assessment for purposes of taxation exceeds in amount the sum of $1,000, and that he is liable to pay taxes thereon. Then follow eight paragraphs, numbered 5 to 12 inclusive, specifically designated as a first cause of action; eight paragraphs numbered 13 to 20 inclusive, specifically designated as a second cause of action, and eleven paragraphs numbered 21 to 31 inclusive, specifically designated as a third cause of action. In neither of the portions of the complaint thus designated are there any allegations bringing plaintiff within the provisions of *236the Taxpayers’ Acts, nor any specific allegations as to defendants’ official positions. An action of this character may be maintained only by a taxpayer fulfilling the conditions specified in said acts or act. *(Rogers*v. *Board of Supervisors,*77 App. Div. 501; *Queens County Water Co.*v. *Monroe,*83 id. 105; *Osterhoudt*v. *Rigney,*98 N. Y. 222, 230, 231; *Wenk*v. *City of New York,*171 id. 607.) While plaintiff may unite in his complaint separate and consistent causes of action (Code Civ. Proc. § 484), the statement of the facts constituting each cause of action must be separate and numbered (Id. § 483), and each cause of action must by specific allegation or by proper reference to and incorporation therein of other allegations of the complaint be complete in itself. *(Wallace*v. *Jones,*68 App. Div. 191.) The demurrers of defendants Archer and Halstead for insufficiency are, therefore, well taken.

As defendant Haight did not demur to the complaint as a whole or to the separate causes of action therein stated upon this ground, as to him we are limited to a consideration of the questions of misjoinder of the causes of action and defect of parties. As to the first cause of action in said complaint contained, for the reason stated in *Daly*v. *Haight, No. 3*(163 App. Div. 239), decided herewith, if the question was before us we should be constrained to hold it insufficient. Eliminating the oh jection of insufficiency, we are of the opinion that there is no misjoinder of causes of action, nor any defect of parties defendant so far as that cause of action is concerned. The payments therein alleged to have been illegally made were made to Haight personally. Although he is only described in the summons and complaint in his official capacity, he has appeared and demurred both individually and as supervisor, and plaintiff has acquiesced in such appearance. The order entered thus describes him, and he appeals in both capacities. The summons and complaint may, therefore, he deemed amended accordingly, and in this cause of action there is no defect of parties defendant. Neither do we think that there is a misjoinder of causes of action, because this is united with the causes of action designated second and third respectively. While as a general rule causes of action which are united must “ except as otherwise prescribed by law * * * affect all the parties to the action” *237(Code Civ. Proc. § 484), so far as the defendant Haight is concerned the act complained of, which is stated to be illegal, is the payment by bim as supervisor of various sums without due warrant of law. In the first cause of action these moneys were paid to bim personally. In the second and third causes of action it is alleged that these sums were paid to various other persons named therein. This precise question seems to have been considered by the Court of Appeals, and decided adversely to this contention of the appellant. *(Wallace*v. *Jones,*182 N. Y. 37.) We think, however, that the demurrer of said defendant to the second and third causes of action respectively is well taken upon the ground that there is a defect of parties defendant. The second cause of action alleges or attempts to allege illegal payments by him to William A. Davidson, Moses Miller, Solomon M. Ireland, Adolph Hoerr and Malcolm Merritt. The third cause of action alleges or attempts to allege similar payments to George A. Slater, Frederick W. Sherman and Arthur E. Wilcox. Neither of the persons named is a party defendant to this action. We think that they were both proper and necessary parties thereto. *(Osterhoudt*v. *Board of Suprs.,*98 N. Y. 239.) In that case the taxpayer sought to vacate certain audits of town accounts made by the board of town ■ auditors in favor of a large number of individuals. Although no demurrer was interposed on the ground of defect of parties, the Court of Appeals reversed a judgment in plaintiffs’ favor, without passing upon the merits of the controversy, upon the ground that there was a defect of parties fatal to the judgment which, under section 452 of the Code of Civil Procedure, a court of equity was obliged to take notice of. It said in that case: “It seems very plain that the persons in whose favor the audits were made were necessary parties. The judgment vacates the audits and restrains their collection in the usual course. They are necessarily prejudiced. * * * They are deprived of the benefit of the adjudication of the board of audit, and if they should undertake to compel the board of supervisors to levy a tax for the payment of the claims, they would be met by the judgment in this case vacating the audits and restraining the collection.” In the case at bar it is true that the moneys have been paid, but if plaintiff should succeed *238in this action in having the audits set aside, and proceedings should then be taken to recover the sums paid as moneys of the town improperly paid, one of two things must follow: Either these various parties would he deprived of the benefit of the audit of their claims by the town auditors in their favor, or this judgment would be of no effect whatever so far as recovering the moneys from them is concerned. The court will not do a fruitless thing.

The order overruling the demurrer of the defendant Haight is modified so as to sustain such demurrer to the second and third causes of action set up in the complaint, and as thus modified is affirmed, without costs, with leave to said defendant to apply to the Special Term of this court for permission to withdraw his demurrer, and for leave to answer upon such terms as may he just.

The orders overruling the demurrers of the defendants Archer and Halstead are each of them reversed, with ten dollars costs and disbursements to each of said appellants, and each of said demurrers is sustained, with costs.

Jerks, P. J., Caer, Stapletor and Putram, JJ., concurred.

Order overruling the demurrer of defendant Haight modified so as to sustain such demurrer to the second and third causes of action set up in the complaint, and as thus modified affirmed, without costs, with leave to said defendant to apply to the Special Term of this court for permission to withdraw his demurrer, and for leave to answer upon such terms as may he just. Orders overruling the demurrers of the defendants Archer and Halstead reversed, with ten dollars costs and disbursements to each of said appellants, and each of said demurrers sustained, with costs.