Childs v. Tompkins
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiffs, Herbert J. Childs and others, from an order 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 3d day of October, 1917, sustaining a demurrer to the amended complaint herein. Respondent George T. Kelly, builder of the Ossining Mimic- • ipal Building, brought an action- for his compensation, which the village defended.
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Appeal by the plaintiffs, Herbert J. Childs and others, from an order 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 3d day of October, 1917, sustaining a demurrer to the amended complaint herein. Respondent George T. Kelly, builder of the Ossining Mimic- • ipal Building, brought an action- for his compensation, which the village defended. After a trial in the Supreme Court, he had judgment for $24,128.72. The village charter (Laws of 1910, chap. 667) provides for a president and twelve trustees (§ 10), a…
1Opinion of the Court
Putnam, J.:
The minority of the village trustees suing as taxpayers do not allege that the acts of the village officials were fraudulent or collusive. This leaves merely the question of the legality *857of the contract and the contractor’s claims. (Mead v. Turner, 134 App. Div. 691, 692.) The plaintiffs ask a court of equity not only to intervene, but to do so after the contractor has pursued his remedy in a court of law and has recovered a judgment. The relief asked would not only deprive him of this judgment, but would take away from Kelly and from the village the constitutional right to have…
2Cases cited2 opinions
- Kittinger v. . Buffalo Traction Co.New York Court of Appeals · 1899
- Mead v. TurnerAppellate Division of the Supreme Court of the State of New York · 1909
3Cited by1 opinion
- Pilbeam v. SissonAppellate Division of the Supreme Court of the State of New York · 1923