#### Joseph P. Olp *et*al., App’lts, *v.*William Leddick *et al.,*Overseers of the Poor, *et al.,*Resp’ts.

*(Supreme Court, General Term, Fifth Department,*

*Filed April 16, 1891.)*

1. Taxpayers’ act —Action under, does not lie to restrain settlement OP ACTIONS POR VIOLATION OP EXCISE LAW.

An action cannot be maintained under the taxpayers’ act, Laws 1881, chap. 531, to restrain the settlement by overseers of the poor of actions brought for violations of the excise laws.

3. Excise—Settlement op action.

The court will not interfere with a settlement by the overseer of the poor of an action for excise penalties which is honestly made in furtherance of a general public opinion and upon fair and reasonable terms.

Appeal from a judgment entered in Livingston county, April 14, 1890, on the decision of the special term dismissing the plaintiffs’ complaint upon the merits.

*W. Martin*Jones, for app'lts; *Charles J. Bissell*and *E. A. Nash,*for resp’ts.

Macomber, J.

The plaintiffs bring this action under chap. 531 of the Laws of 1881, as amended by chap. 673 of the Laws of 1887, commonly spoken of as the taxpayers’ act, for the purSose of restraining the settlement by the defendants Leddick and Zelsall, who are overseers of the poor of the town of Mt. Morris, of certain actions pending against the defendant Cassidy and others to recover penalties in actions brought for violation of the excise laws of the state.

From May 3, 1887, to the 15th day of March, 1888, the defendant Cassidy was a bartender in a saloon in the vilage of Mt. Morris, and while there sold intoxicating liquors at retail without a license, either in his own name or the name of his employer, in quantities of less than five gallons at a time.

The defendant Leddick, and his co-overseer at that time, one William Narragan, had been requested by one of the plaintiffs to bring an action against Cassidy for the penalties incurred by him in such illegal sale of intoxicating liquors. Accordingly such overseer did commence an action in the supreme court against Cassidy for such cause or causes of action, the complaint containing one hundred separate counts or causes of action, and in which a judgment for $5,000 was demanded. Subsequently, one John Olp having been associated with Leddick as a co-overseer of the poor, negotiations were had by which the defendant Led-dick entered into an agreement with Cassidy without the concurrence or consent of his associate, except that Olp had notice of an intention and an attempt to settle, which negotiations resulted in a settlement for the sum of fifty dollars penalty and one hundred dollars costs, the terms of which were fully complied with by the defendant in that action, he having paid over the money and the costs to Leddick. Leddick’s co-overseer of the poor, John Olp, in no respect consented or concurred in such settlement Other actions were pending by Leddick and Narragan as such overseers, instituted in the supreme court, against sundry other parties for like *123penalties. Large expenses were incurred in the prosecution of these actions, the bills of which were presented to the board of supervisors of the county of Livingston at its annual session in the year 1888 for audit. A strong public sentiment was created against the prosecution of those actions. On the 27th day of December, 1888, Leddick, in good faith, believing it to be for the best interests of the taxpayers in the town and county, made the settlement above-mentioned, and at the same time settled the other actions against the persons named, except one, upon the same terms made with Cassidy. It is abundantly shown that while Cassidy was probably good for a larger amount than he actually paid, that the defendants in the other actions were in many, if not most instances irresponsible. But Leddick insisted that all of the actions, with the exception named, should be settled and the money paid in behalf of the irresponsible defendants, as well as in behalf of Cassidy.

Upon hearing these facts, the learned trial judge dismissed the plaintiffs’ complaint upon the merits without putting the defendants to their proofs. In this conclusion we think he was clearly right, for two reasons: The first is, that the plaintiffs have no standing in court to maintain an action of this character. The object of the taxpayers’ act is to enable citizens to prevent waste or injury to the funds or estate of a municipality and to make good and restore any property which may have been unlawfully taken. It is for the purpose of preservation of the funds of the municipality that this act and its amendments were passed. An actual or threatened injury or waste of property or public funds enables the individual taxpayer to call upon a court of equity to interfere. *Ayers*v. *Lawrence, 59 N.*Y., 192.

The case of *Standart v.*Burtis, *4*6 Hun, 82; 15 N. Y. State Rep., 145, upon which the appellants chiefly rely, has no application to the question here considered. That was an action to restrain the fraudulent and unlawful settlement and satisfaction of a judgment which had been recovered against violators of the excise law, which judgment had been affirmed by the general term of the supreme court, and was pending on appeal in the court of appeals. A party charged in a judgment is charged under the highest form of a civil contract to pay. The case presented by *Standart*v. *Burtis*was one where there was shown to be an abuse of the discretionary power lodged in the excise commissioners in settling for a nominal sum a substantial judgment of $2,000 which was good and collectible against the party against whom a recovery had been had for selling liquors without a license. The distinction between the two cases is so obvious as hardly to require further comment.

This action, however, is not within the scope of these statutes. It is not brought to restore any funds that have been embezzled, diverted or dissipated. It is not for the purpose of preventing the waste or illegal use of any such funds. Under chap. 109 of the Laws of 1878, being an amendment of the act of 1857, and other acts, the overseers of the poor of the town have a right to sue for and recover the penalties prescribed by the excise laws. *124These penal statutes were a part of the repressive laws of the state, designed to regulate and to some extent restrain the sale of intoxicating liquors. Those parts of such laws which gave a right of action for a penalty do not proceed upon the ground of any actual indebtedness existing by contract from the person who has been guilty of an infraction of the law, but, on the contrary, on the ground of the party’s guilt of an offense punishable both by criminal process ana by the *quasi*criminal prosecution of an action for a penalty. In no legal sense can it be said that such a claim made in behalf of the overseers of the poor of the town is for the purpose of preventing waste. It is solely for the purpose of punishing the violator of the law. For this reason we think the plaintiffs have no standing in court to enable them to maintain this action.

But there is an [additional ground upon which the decision of the learned justice at special term may be sustained, namely: That an overseer of the poor may settle and discontinue an action, whether brought by himself or his predecessors, when honestly made, as was done in this case. *Bellinger*v. *Birge,*54 Hun, 511; 28 N. Y. State Rep., 116; *People ex rel. Hammond*v. *Leonard,*74 N. Y., 443.

The evidence and the findings show that the settlement of these actions was honestly made in furtherance of a general public opinion, expressed through the board of supervisors and otherwise, and upon terms which were fair and reasonable. The allegations of the complaint to the effect that the settlement against Cassidy was a conspiracy to defraud the people of the town of their just and lawful dues, and to work a waste and injuries to the funds, property and estate of the town, are not supported by an item of proof in the case. The plaintiffs have failed to establish any fact which would justify a court of equity in interfering with the settlement so made by the overseers of the poor.

The judgment appealed from should be affirmed, with costs to each respondent separately appearing.

Dwight, P. J., and Corlett, J., concur.