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 defence therein, under the direction of such person as the court may, in its judgment or order, designate and oppoint.

Certain books, etc., declared to be public records.] 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, are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any tax payer.

This act does not interfere with other legal remedies.] 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 officers thereof, may be enforced by action or otherwise, by the persons herein before 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 act 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 to the defendant in determining his liability in the action by the county, town, village or municipal corporation or public officer.

The provisions of this act 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. Laws 1881, chap. 531, as amended by Laws 1887, chap. 673.

An action was sustained by a tax payer to vacate a lease of a wharf, which had been illegally made. Starin v. Mayor, etc., of New York, 42 Hun, 549.

Where a judgment for a large number of penalties for selling liquors without a license, had been recovered by Excise Commissioners, which judgment was good and collectable, an action by a tax payer, against the Excise Commissioners and the judgment debtor, to restrain a collusive compromise of such judgment at a sum much less than the amount of the judgment, about to be effected between the Excise Commissioners and the defendant in the judgment, was held sustainable. Standard v. Burtis, 46 Hun, 82.

An action shall lie by a tax payer to compel the surrender for cancelation of town bonds which have been illegally issued. Strang v. Cook, 47 Hun, 46.

So, too, an action will lie to restrain the contemplated and threatened issue of bonds by railroad commissioners not authorized by law.

192.

Ayers v. Lawrence, 59 N. Y.

And an action will lie by a tax payer of the town to restrain the negotiation or payment of town bonds issued in exchange for stock in a railroad where the bonds were void as having been issued under a judgment void for want of jurisdiction. Metzger v. Attica and Arcade R. R. Co., 79 N. Y. 171.

An action to vacate an audit, by a Town Board of Audit, of a claim which the Board had no authority to allow, or where the audit was fraudulent and collusive, and to restrain the collection of a tax therefor, may be brought by a tax payer under this act. Osterhoudt v. Rigney, 98 N. Y. 222.

The right to maintain an action under this act is not confined to cases where before its passage an equitable action could have been brought by the town for the same relief. Osterhoudt v. Rigney, 98 N. Y. 222.

The legislative intent in the passage of this act was to provide ample remedy and protection to the tax payers against all wrongful acts, to their prejudice, of the officers and agents of a municipal corporation, affecting not only its property rights but its credits, and embraces within its purview every process or means by which the corporation can be charged pecuniarily, or the taxable property within its limits burdened. Ayers v. Lawrence, 59 N. Y. 192.

Where, after an action has been begun by a tax payer certain facts transpire that render a supplemental complaint necessary, it is error to refuse him leave to file such supplemental complaint. Latham v. Richards, 15 Hun,

129.

An action was sustained by a tax paper, to restrain a County Treasurer from paying himself certain fees on tax sales out of trust funds in his hands, without first having his fees audited, as required by law. Warrin v. Baldwin, 105 N. Y. 534.

An action by a tax payer held not maintainable to have certain town bonds declared void where it appeared that they had been issued pursuant to a compromise of, previously issued bonds bearing a higher rate of interest. Hills v. Peekskill Savings Bank, 101 N. Y. 490.

§ 1288. Action by tax payer against public officer.

An action to obtain a judgment, preventing waste of, or injury to the estate, funds or other property of a county, town, city or incorporated village of the state, may be maintained against any officer thereof, or any

agent, commissioner or other person, acting in its behalf, by a citizen resident therein, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax thereon. This section does not affect any right of action in favor of a county, city, town or incorporated village, or any public officer. Code of Civil Procedure, § 1925.

CHAPTER XXIX.

OF THE REMEDIES BY MANDAMUS.

§ 1289. Mandamus, when applicable.

§ 1290. Powers of Supervisors as auditors.

1291. Powers of Supervisors in relation to different classes of claims. § 1292. When Supervisors act ministerially.

§ 1293. When they act judicially.

§ 1294. When the writ may be invoked.

§ 1295. Questions of practice.

§ 1296. Claims must have been presented to Board for audit.

§ 1297. When writ will issue, particularly specifying the duty and manner of performance.

§ 1298. When the writ will issue enforcing action, but without determining the particular action.

§ 1299. When the writ will be refused.

$1300. Board may be compelled to re-convene.

§ 1301. Neglect to act equivalent to a refusal.

§ 1289. Mandamus, when applicable.

It is mainly while acting as a Board of Audit of charges against the county, and in levying and taking the necessary steps to collect taxes, that the writ of mandamus is available to regulate, control or coerce the action of the Board of Supervisors. And to a definite and thorough understanding of when it will issue, and precisely for what purpose, and the particular relief that may be secured by it, it is essential to state, in a few words, the powers and duties of Boards of Supervisors, while discharging the functions of the office of County Board of Audit; and for the levy of taxes.

§ 1290. Powers of Supervisors as Auditors.

It must be borne in mind that accounts for county charges, of every description, shall be presented to the Board of Supervisors of the county, to be audited by them. 1 R. S. 386, § 4 (2 R. S. [8th ed.]) 1079. And that no county shall possess or exercise any corporate powers except such as are enumerated in this chapter; or shall be