IN THE

SUPREME COURT

AND

COURT OF APPEALS

OF THE

STATE OF NEW YORK.

BY NATHAN HOWARD, Jr.,

COUNSELLOR-AT-LAW, NEW YORK.

VOLUME XLV.

ALBANY:

WILLIAM GOULD & SON,

LAW BOOKSELLERS AND PUBLISHERS.

1873.

Entered according to act of Congress, in the year eighteen hundred and seventy-three,.

BY WILLIAM GOULD & SON,

in the office of the Librarian of Congress, at Washington.

Rec. Nov. 24, 1873

THE ARGUS COMPANY,

PRINTERS AND STEREOTYPERS,

ALBANY, N. Y.

H.

Holland agt. Hayman.....

Cases Reported.

........

Home Insurance Co. agt. Jones, 498 People ex rel. Macdonnell agt.

289

294

477

1

45

504

PRACTICE REPORTS.

SUPREME COURT.

SAMUEL PIERCE, respondent, agt. CHARLES S. WRIGHT et al., impleaded, appellants.

An action by a tax-payer of a town to perpetually enjoin and restrain commissioners from issuing the bonds of the town, for the purpose of aiding in the construction of a railroad, cannot be maintained where the allegations of the complaint do not show that the alleged commissioners are officers of the town having any authority by legal appointment or color of appointment to act as commissioners for the purpose of bonding the town.

The only fact stated on the subject being that they either are or claim to be commissioners, with an allegation of ignorance as to the truth of the claim. This is to be construed most strongly against the pleader, and it amounts to this: That here are certain persons who say they are commissioners of the town, but whether they are so or not we neither affirm nor deny. An attempt or threat by an individual or individuals to do an act which, when done, would be a nullity, neither binding upon nor injurious to any one, according to the allegations of fact in a complaint, or, for aught appears there, lays no foundation whatever for an action to restrain the commission of such act.

Where the complaint alleges and charges that some of the persons signing the consents filed in the town clerk's office were not tax-payers of the town, and did not even own the property assessed to them, and that the owners had never given their consents, &c.,-Held, that these and similar allegations of insufficiency raise the question whether every or any individual tax-payer in the town may challenge and assail the facts as they appear from the record, which the statute makes evidence, by action in this collateral way