Emmett Armstrong, Appellant, v. Wilmer H. Fitch and Others, Comprising the Board of Supervisors of the County of Clinton, Respondents, Impleaded with Gilbert Miller, as Town Collector of the Town of Mooers, Clinton County, New York

Emmett Armstrong, Appellant, v. Wilmer H. Fitch and Others, Comprising the Board of Supervisors of the County of Clinton, Respondents, Impleaded with Gilbert Miller, as Town Collector of the Town of Mooers, Clinton County, New York. Third Department, May 18, 1906. "Parties—claimants whose claims are audited."by supervisors are.necessary parties defendant in taxpayer’s action to set aside audits cleave ■ to amend bringing in such parties granted. In a taxpayer’s action to set aside audits made by a board of supervisors the owners of the claims are necessary parties defendant, and when the defendant board has demurred to the complaint by reason of such defect of parties it is error to refuse an'application to amend the complaint to bring in the additional parties. -Appeal by the plaintiff,.Emmett Armstrong, from an ordér of the Supreme Court, made at-the Saratoga Special Term and entered in the office of the clerk of the county of Clinton on the 26 th day of February, 1906, denying the plaintiff’s motion for leave to serve an amended and supplemental summons and complaint, bringing in additional parties as defendants. David H. Agnew, for the appellant. W. H. Dunn, for the respondents. [MAJORITY — Chester, J.:] Chester, J.: The action is a taxpayer’s action to set aside certain alleged audits made by the board of supervisors of Clinton county of claims against the town of Mooers and to restrain the collector of such town from paying any of such audits. The complaint shows that the claimants under these claims were not'made parties to'the action. The order appealed from denies a motion made by the plaintiff to bring such claimants in as parties, and from such denial plaintiff has appealed. ' It., was held in Osterhoudt v. Board of Supervisors (98 N. Y. 239): that in a taxpayer’s action to vacate, qn the ground of illegality, audits of- town accounts arid' to restrain the- levying of a tax i for their payment, the- persons in whose favor the audits were made are necessary parties. It appeared on the face of the complaint that there- was a defe.c’t of parties defendant, because of the absence of the claimants. The defendants, comprising the- board of supervisors,, demurred to the complaint upon that ground. So that we have here .a case where both parties agree in .Masting that the, claimants should be ihade parties,' yet the court has denied the motion of the plaintiff to bring them in and to authorize the issuing of *a supplemental summons for that purpose. It is urged by tliel respondents that -all the relief sought for by the plaintiff upon tins motion was accorded to him by the interlocutory judgment sustaining the demurrer. But while we have the fact that a demurrer] was interposed upon the ground stated there is -nothing in this record showing that there has been any hearing or decision of the] demurrer, Upon the record before us, therefore,, the plaintiff wa¡ clearly, entitled to have his motion granted. The order appealed from should be reversed, with ten dollar] costs and printing disbursements to the appellant, and the motioi granted upon the payment of twenty-five dollars costs by the-plairitil within twenty days after the service of this order. All-concurred. Order reversed, with ten'dollars costs and disbursements to tti appellant, and motion granted upon payment of twenty-five dolía] costs by the plaintiff within twenty days after service of copy <1 . this order.