Stilwell v. Mayor of New York

The question upon which there is a difference of opinion between Judge Daly and myself, is whether an action can be maintained against the defendants, assuming that they have in their custody, and under their control, the money specially appropriated by the Legislature of this State for the payment of the plaintiffs’ demand.

The claim for services rendered by the plaintiffs to the city chamberlain, the plaintiffs regarded as a proper charge against the city of Hew York; and the -tax-levy for the year 1861 being then before the Legislature, they presented their bill to that body, and' the result was a provision in the act of 1861, passed April 17, by which the supervisors were empowered and required to cause to be raised by tax, “ on account of the corporation of the city of Hew York,” the sum claimed as before mentioned, which was to be paid to the chamberlain, and in whose favor the comptroller was authorized and directed to draw his warrant for that sum. The sum was raised in the manner prescribed, and paid into the city treasury.

The city chamberlain is an officer of the city, as his title imports, and the chief officer of a bureau in the department of finance (Charter of 1857, §§ 21, 22), for the reception of all the moneys paid into the treasury of the city, and for the payment of moneys on the warrants drawn by the comptroller, and countersigned by the mayor and clerk of the Common Council (Charter of 1857, § 22). He is the custodian of the funds belonging to the, city of Hew York (Laws of 1860, 953), and the struggle for such funds, and the books, and papers, and vouchers *387connected with the. burean, was one in the result of which the defendants were interested. The expenses of the litigation, which the newly appointed chamberlain was obliged to incur, were, therefore, though pertinent to the assumption and discharge of his duties, indirectly advantageous to the defendants, who had exercised the power of removal and appointment.

Whether this be so or not, however, is not material to the disposition of the question under consideration. The Legislature' determined that the charge was a proper one against the city, as they had done before in an analogous' case (see Laws of 1858, 490), and they directed the supervisors to raise the money by tax, “ on account of the defendants,” to pay it. The Legislature, having recognized the validity, or established the validity of the claim against the city, the right to do which is not to be questioned (Town of Guilford a. Supervisors of Chenango, 13 N. Y., 143), the liability of the- defendants was admitted and determined.

The Legislature went further, however. They provided by what means and in what manner the money should be raised to meet the obligation, and directed the comptroller,to draw his warrant for the sum. There can be no doubt that it was wholly unnecessary to insert the direction to the comptroller to draw the warrant. The claim having been established, it became his duty, under section 22 of the charter of 1857, “to settle and adjust it,” and the direction cannot be regarded per se as a. special enactment, taking the particular sum under consideration from the general duties which the comptroller is required by law to discharge, under the charter, in reference to claims against the city. The result would be precisely the same, whether the act contained the specific direction or not, there being nothing in the language of the act, or in its general purpose or design, indicating an intention to make the claim of the chamberlain .an exception to the general or admitted obligations of the defendants, or the comptroller a special depository or custodian of the fund to meet it. On the contrary, the act of 1861 authorizes the supervisors to raise, on account of the corporation, a sum in gross for certain purposes; and the purposes then being set out in detail, the sum due to the chamberlain, and by him assigned to the plaintiffs, appears among *388them. The warrant contemplated by the act to be drawn by the comptroller would not be good, unless countersigned by the mayor and clerk of the Common Council, as provided by the charter of 1857, there being nothing in the direction relied upon excepting it from the provisions of that law ; a circumstance which bears directly upon the proposition, that 'the Legislature intended to and did create a liability on the part of the defendants, which they furnished the means to discharge. But the warrant being drawn, would he drawn against the funds of the defendants, in the treasury there deposited, under the general appropriation which embraced the claim in question, and not against any fund specifically deposited with the comptroller.

The provisions of the act of 1861 contain directions to the defendants, in terms, to appropriate, of the money to be raised by tax, an amount sufficient to pay the sum due to the chamberlain ; and that established their liability to him or his assignees. The direction expressly contained to the comptroller, was the mere declaration of a legal duty imposed by law upon that officer, in reference to the funds and debt of the defendants; which was unnecessary, either-to accomplish the plaintiffs’ right to recover, or the defendants’ obligation to pay, and did not create a special relation between the chamberlain and the comptroller. For these reasons, without considering this mat-, ter further, I think it clear that the defendants were, by the act of 1861, rendered liable to the plaintiffs to pay the sum demanded, and, being liable, this action can be maintained; that the liability established is not controlled in any way by the direction to the comptroller to draw his warrant, that being his duty in reference to all claims against the city, and there being nothing in the act of 1861 isolating the sum due to the plaintiffs, as assignees of Devlin, from the general rules of law governing the remedy against the defendants upon claims established.

The judgment should be affirmed.

By the 22d section of the amended Charter of 1857 (Laws of 1857, 879), the chamberlain is the chief officer of one of the bureaux of the department of finance; and by the 26th section, the law department has the charge *389and conduct of all the law business, both of the corporation and of the departments. If the corporation are chargeable with the expense of proceedings instituted by any officer of the departments to obtain possession of the city property belonging to his department, then it is, under the charter, law business of the corporation, or of the particular department, and must be placed in the charge of, and be conducted by, the appropriate officer of the law department. If the officer employs other legal aid to conduct the proceeding, he does so at his own cost, and has no claim against the city to be indemnified for expenses so incurred. It was held in Powell a. The Trustees of New-burg (19 Johns., 284), that the trustees of an incorporated village, who had incurred expense in defending themselves in a suit brought against them for an act done in the faithful discharge of their duty, could maintain an action against the corporation to recover the expense thus incurred, upon the ground that the principal is liable for the expense necessarily incurred by an agent in managing the principal’s affairs or in protecting his interests; but if the protection of the interests of the principal involves the institution or the defence of a lawsuit, and the principal has designated who in that event is to conduct and manage it, tw agent would be acting wrongfully in employing anybody else, and. would not necessarily, in such a case, have the legal right to insist that the principal should repay what the agent disbursed to the person he saw fit to employ. In the present case, a law department has been created by an act of the Legislature for conducting all the law business relating to the corporation, or any of the departments, the officers of which receive compensation in the form of fixed salaries, which are paid to them out of the city treasury for attending to this duty; and such being the case, it would be defeating the intention of the Legislature to hold that every officer connected with the city government might employ private counsel in all matters arising in connection with his office, and impose upon the city the payment of the additional expense thus incurred.

It remains, then, but to consider whether the act of the Legislature of April 17, 1861, coupled with the refusal of the • comptroller to comply with the provisions of that act, gives the plaintiff a right of action against.the corporation. In my judg*390ment, it does not. There is no doubt of the power of the Legislature to pass such an act (Town of Guilford a. Supervisors of Chenango Co., 13 N. Y., 143), but by its passage they have imposed no duty upon the corporation as such. They have directed that the supervisors of the county should raise by tax the sum of $22,765.67, which shall be paid to the chamberlain to reimburse him for expenses incurred by him in procuring the transfer of the books, securities, and funds of his office from his predecessor, and in defending and establishing the title to the office; and they have directed the mode in which this sum shall be paid, by authorizing and directing the comptroller to draw his warrant for the amount in favor of the chamberlain. The supervisors have complied with the requisitions of the act. The amount has been raised by tax, and is in the city treasury, but the comptroller has refused to draw his warrant for it in favor of the chamberlain. The act was one which he was specifically empowered and directed by the Legislature to do, and I do not see, because he refuses to do it, that an action can be maintained against the corporation for the recovery of the amount. The corporation have in this matter no authority over him. He is neither appointed by nor removable by the corporation; and thong'd connected with it in the administration of the city government, he is, in a certain sense, an independent officer, elected by the people. “Ho case has been cited," says Cowen, J., in Martin a. The Mayor of Brooklyn (1 Hill, 551), “ wherein it has been holden that municipal corporations are liable for omissions of duty specifically imposed by statute on one of their officers. In this respect,” he says, “ the latter are quasi civil officers of the government, though appointed by the corporation. The relation of master and servant does not exist between the corporation and officer.” And in the elaborate brief submitted by the very able counsel who argued the case, for the plaintiff, no authority has been cited showing that, under circumstances like this, an action would lie against a municipal corporation. Where a statute imposes, as in this case, a duty upon a public officer, he is responsible for the neglect of that duty to any person sustaining damage, and the plaintiff’s remedy is either by an action against the comptroller, or by a proceeding to compel him to perform the duty enjoined by the Legislature. (Barry a. *391Arnould, 10 A. & E, 646; Lacon a. Hooper, 6 T. R., 224; Grant on Corporations, 384; Tapping on Mandamus, 176.)

The judgment should have been for the defendant, on the demurrer.

Judgment affirmed.