Opinion
November, 1935.
In a taxpayer's action, order in so far as it denies the motion of the appealing defendants to vacate the notice of examination reversed on the law and the facts, with ten dollars costs and disbursements to appellants, and motion to vacate granted, with ten dollars costs. Defendants-appellants Gold and Gandia are respectively the mayor and the treasurer of the city of Long Beach. The allegations of the complaint set forth certain official transactions of the city and are insufficient to charge appellants with personal responsibility. At most, as charged in the complaint, they were guilty of an error of judgment in their capacities as city officials. As they are not subject to personal liability under the allegations of the complaint, they cannot be examined before trial, notwithstanding that judgment is not asked against the city. ( Uvalde Asphalt Paving Co. v. City of New York, 149 App. Div. 491.) Scudder, Tompkins, Davis and Johnston, JJ., concur; Lazansky, P.J., dissents and votes to affirm. The appellants, examination of whom is sought, are charged with personal responsibility for diverting the city's funds from a use for which they were raised.