Appleton v. Water Commissioners

By the Court,

The first act “ to provide for supplying the city of New-York with pure and wholesome water,” was passed in 1834, and there have been several acts since that time on the same subject. (Stat. 1834, p. 451; 1836, p. 709; 1837, p. 350; 1838, p. 88; 1840, p. 126; 1841, p. 298.) The first section of the act of 1834 provides for the appointment by the governor and senate of' “ five persons, to be known as the Water Commissioners for the city of New-York.” This, and the subsequent acts, provide for acquiring lands and constructing works for the benefit of the city of New-York; and the common council of the city" is to procure funds and pay all the necessary expenses of the undertaking. The commissioners have the general charge and superintendance of the work, with power to make contracts for lands, labor and materials, and authority to draw on the comptroller of the city for moneys to be paid to contractors and others. In short, these officers have about the same powers and duties in relation to this work, that the canal commissioners have in the construction of state canals. The water commissioners are not a corporation, and cannot be proceeded *434against as such. If the individuals holding the office of water commissioners have made any contract with the plaintiff by which they have bound themselves personally, the remedy of the plaintiff is by proceeding against them as individuals. If they have contracted as public officers acting within the general scope of their powers, the remedy is against the corporation of the city of New-York. Or, if money is due the plaintiff, and the commissioners have funds in their hands which they wrongfully refuse to pay over; or if they improperly neglect to draw on the city comptroller, the plaintiff may, perhaps, proceed by mandamus, or have a special action on the case. But those questions need not be settled at this time. It is enough that there is no such corporation as the plaintiff has attempted to implead.

Judgment for defendants.