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This entry was published on 2014-09-22
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SECTION 51
Prosecution of officers for illegal acts
General Municipal (GMU) CHAPTER 24, ARTICLE 4
§ 51. Prosecution of officers for illegal acts. All officers, agents,
commissioners and other persons acting, or who have acted, for and on
behalf of any county, town, village or municipal corporation in this
state, and each and every one of them, may be prosecuted, and an action
may be maintained against them to prevent any illegal official act on
the part of any such officers, agents, commissioners or other persons,
or to prevent waste or injury to, or to restore and make good, any
property, funds or estate of such county, town, village or municipal
corporation by any person or corporation whose assessment, or by any
number of persons or corporations, jointly, the sum of whose assessments
shall amount to one thousand dollars, and who shall be liable to pay
taxes on such assessment in the county, town, village or municipal
corporation or by any person who owns shares in a cooperative housing
corporation where the pro rata share of the assessment attributable to
such shares shall amount to one thousand dollars (or by any number of
such persons, jointly, the sum of whose pro rata shares shall amount to
one thousand dollars) and where the cooperative housing corporation
shall be liable to pay taxes on such assessment in the county, town,
village or municipal corporation to prevent the waste or injury of whose
property the action is brought, or who have been assessed or paid taxes
therein upon any assessment of the above-named amount within one year
previous to the commencement of any such action, or who has been so
assessed but has not paid nor shall be liable to pay any or the full
amount of taxes on such assessment because of a veteran's exemption
therefrom pursuant to section four hundred fifty-eight of the real
property tax law, or who has been so assessed but has not paid nor shall
be liable to pay any or the full amount of taxes on such assessment
because of an exemption therefrom granted to persons sixty-five years of
age or over or their spouses pursuant to the real property tax law. Such
person or corporation upon the commencement of such action, shall
furnish a bond to the defendant therein, to be approved by a justice of
the supreme court or the county judge of the county in which the action
is brought, in such penalty as the justice or judge approving the same
shall direct, but not less than two hundred and fifty dollars, and to be
executed by any two of the plaintiffs, if there be more than one party
plaintiff, providing said two parties plaintiff shall severally justify
in the sum of five thousand dollars. Said bond shall be approved by
said justice or judge and be conditioned to pay all costs that may be
awarded the defendant in such action if the court shall finally
determine the same in favor of the defendant. The court shall require,
when the plaintiffs shall not justify as above mentioned, and in any
case may require two more sufficient sureties to execute the bond above
provided for. Such bond shall be filed in the office of the county clerk
of the county in which the action is brought, and a copy shall be served
with the summons in such action. If an injunction is obtained as herein
provided for, the same bond may also provide for the payment of the
damages arising therefrom to the party entitled to the money, the
auditing, allowing or paying of which was enjoined, if the court shall
finally determine that the plaintiff is not entitled to such injunction.
In case the waste or injury complained of consists in any board, officer
or agent in any county, town, village or municipal corporation, by
collusion or otherwise, contracting, auditing, allowing or paying, or
conniving at the contracting, audit, allowance or payment of any
fraudulent, illegal, unjust or inequitable claims, demands or expenses,
or any item or part thereof against or by such county, town, village or
municipal corporation, or by permitting a judgment to be recovered
against such county, town, village or municipal corporation, or against
himself in his official capacity, either by default or without the
interposition and proper presentation of any existing legal or equitable
defenses, or by any such officer or agent, retaining or failing to pay
over to the proper authorities any funds or property of any county,
town, village or municipal corporation, after he shall have ceased to be
such officer or agent, the court may, in its discretion, prohibit the
payment or collection of any such claims, demands, expenses or
judgments, in whole or in part, and shall enforce the restitution and
recovery thereof, if heretofore or hereafter paid, collected or retained
by the person or party heretofore or hereafter receiving or retaining
the same, and also may, in its discretion, adjudge and declare the
colluding or defaulting official personally responsible therefor, and
out of his property, and that of his bondsmen, if any, provide for the
collection or repayment thereof, so as to indemnify and save harmless
the said county, town, village or municipal corporation from a part or
the whole thereof; and in case of a judgment the court may in its
discretion, vacate, set aside and open said judgment, with leave and
direction for the defendant therein to interpose and enforce any
existing legal or equitable defense therein, under the direction of such
person as the court may, in its judgment or order, designate and
appoint. All books of minutes, entry or account, and the books, bills,
vouchers, checks, contracts or other papers connected with or used or
filed in the office of, or with any officer, board or commission acting
for or on behalf of any county, town, village or municipal corporation
in this state or any body corporate or other unit of local government in
this state which possesses the power to levy taxes or benefit
assessments upon real estate or to require the levy of such taxes or
assessments or for which taxes or benefit assessments upon real estate
may be required pursuant to law to be levied, including the Albany port
district commission, are hereby declared to be public records, and shall
be open during all regular business hours, subject to reasonable
regulations to be adopted by the applicable local legislative body, to
the inspection of any taxpayer or registered voter, who may copy,
photograph or make photocopies thereof on the premises where such
records are regularly kept. This section shall not be so construed as to
take away any right of action from any county, town, village or
municipal corporation, or from any public officer, but any right of
action now existing, or which may hereafter exist in favor of any
county, town, village or municipal corporation, or in favor of any
officer thereof, may be enforced by action or otherwise by the persons
hereinbefore authorized to prosecute and maintain actions; and whenever
by the provisions of this section an action may be prosecuted or
maintained against any officer or other person, his bondsmen, if any,
may be joined in such action or proceeding and their liabilities as such
enforced by the proper judgment or direction of the court; but any
recovery under the provisions of this article shall be for the benefit
of and shall be paid to the officer entitled by law to hold and disburse
the public moneys of such county, town, village or municipal
corporation, and shall, to the amount thereof, be credited the defendant
in determining his liability in the action by the county, town, village
or municipal corporation or public officer. The provisions of this
article shall apply as well to those cases in which the body, board,
officer, agent, commissioner or other person above named has not, as to
those in which it or he has jurisdiction over the subject-matter of its
action.