Opinion
Argued April 30, 1979
Decided May 31, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MORRIE SLIFKIN, J.
David Mac Rae Wagner and Robert G. Natelson for appellants.
Marc L. Parris, County Attorney (Martin Hurwitz of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Section 51 of the General Municipal Law provides for personal liability of public officials who commit illegal acts in their official capacities "by collusion or otherwise". We agree with the Appellate Division that under this statute personal liability arises only if the illegal acts were collusive, fraudulent, or motivated by personal gain (Daly v Haight, 170 App. Div. 469, affd 224 N.Y. 726). Since there is no evidence in the record that the conduct of the defendant county legislators was of the nature contemplated by the statute, they may not be held personally liable for their allegedly wrongful acts. Having so held, we need not decide whether these acts, involving the use of county funds to produce and disseminate a pamphlet supporting adoption of a charter form of government, constituted an illegal waste of public funds. This is particularly true where it is the county legislature which is given the initiatory responsibility with respect to the subject legislation.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG, concur in memorandum.
Order affirmed.