#### 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 Charles W. Stevens and Peter H. Spader, Defendants, Together Composing and Constituting the Board of Town Auditors of the Town of Rye. (Action No. 3.)

Second Department,

June 12, 1914.

Pleading—taxpayer’s action—complaint failing to state cause of action.

A complaint in a taxpayer’s action brought against the supervisor, auditors and clerk of a town, which in substance merely alleges that during a certain year the supervisor unlawfully paid the town clerk a certain sum of money and that the town auditors unlawfully audited the claim, fails to state a cause of action. It is necessary to set out facts showing the illegality or fraudulent character of the claim.

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 9 th day of February, 1914, overruling their demurrers to the amended complaint.

*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 also a taxpayers’ action brought against Joseph Haight, as supervisor of the town of Rye, and Clement Archer, Peter H. Spader and James D.. Halstead, composing the board of town auditors. With them is also joined as a party defendant Charles W. Stevens, the town clerk. Haight, Archer and Halstead, by separate demurrers, attack the sufficiency of the complaint. From separate orders overruling these demurrers each separately appeals.

Although the complaint charges illegality or fraudulent conduct on the part of the town board who audited the claim« of Stevens, the town clerk, and the supervisor who paid them, and of Stevens, the town clerk who received such moneys, not *240a single fact is stated therein showing in what respect such claims were illegal or wherein consists the fraud. In paragraph 5 of the complaint plaintiff alleges that in 1910 Haight, the supervisor, paid to Stevens, the town clerk, ninety-three dollars and fifty cents *“*in excess of the lawful per diem compensation for said Stevens for services to said Town as Town Clerk aforesaid.” No fact is stated showing how this excess arose or why the payment of the sum that was paid was unlawful. Was it because the town clerk charged for a greater number of days than he actually attended, or because he charged an excessive price per day ? There is no statement as to the number of days for which he made charges, or as to the number of days for which he was entitled to charge. There is not even a statement of the gross sum which was paid him, nor any statement as to the sum legally due. In this respect the complaint essentially differs from the complaint approved by this court in *Hicks*v. *Eggleston*(105 App. Div. 73), relied on by respondent. (See Cases on Appeal, Liber 506, Law Library, 1905.)' Following this allegation in the same paragraph are allegations that the supervisor paid the town clerk certain sums for alleged services at meetings of the town board, for alleged services at meetings of the health board, for alleged services at meetings of the joint boards, for alleged services at meetings of the board of canvassers, for alleged services attending meetings of the poor committee, and for alleged services at meetings of the board of auditors of the town. Why were not these proper charges ? Were not the meetings of these various boards held, or did not the town clerk attend these meetings ? Did he render no .services, or, if he rendered such services, was he not entitled to charge for the same ? There is no allegation respecting either of these matters, and respondent does not even in his brief enlighten us as to the ground upon which these charges are claimed to be illegal.

The same criticism applies to the payments stated to have been made by the supervisor to the town clerk in 1911 and 1912. Unless we are prepared to say that in a taxpayer’s action a complaint is good which says in effect *“*during the year 1910 the defendant supervisor unlawfully paid the defendant town clerk $259.50, and the defendants, the town auditors, unlaw*241fully audited such claim,” without stating a single fact from which the illegality or the fraudulent character of the claim resulting in such payments can be determined, then this complaint is hopelessly bad. *Hearst*v. *McClellan*(102 App. Div. 336) is conclusive against the sufficiency of such a pleading. (See, also, *Osterhoudt*v. *Rigney,*98 N. Y. 222, 232; *Ellis*v. *Keeler,*126 App. Div. 343; *Dunning*v. *County of Orange,*139 id. 249; affd. on opinion below, *sub nom. Dunning*v. *Elmore & Hamilton Contracting Co.,*204 N. Y. 647.)

The orders appealed from must be reversed, with ten dollars costs and disbursements to each of the demurring appellants, and the demurrers sustained, with costs, but with leave to the plaintiff to apply to the Special Term of this court for permission to amend his complaint upon such terms as may be just.

Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements to each of the demurring appellants, and demurrers sustained, with costs, but with leave to plaintiff to apply to the Special Term of this court for permission to amend his complaint upon such terms as may be just.