Hanvey v. City of Rochester

By the Court, Welles, J. The case shows that the acts of the defendant, for which the recovery was had, were done in pursuance of two resolutions passed by the common council of the city of Eochester. The first was passed on the 29th day of June, 1858, and was as follows: “Resolved, that the superintendent be requested to remove all obstructions in Butler alley.” The second was passed August 10,1858, and was as follows: “ Resolved, that the city surveyor be directed to mark the lines of Butler alley, in order to enable the superintendent to remove the obstructions from said alley.” These resolutions contain all the authority or interference which the common council have attempted to exercise in re [180] lation to the property of the plaintiff, and all the directions which they have given on the subject. It will be perceived that neither of them points or refers to any property in particular, but they are general with a view to the removal of obstructions in Butler alley. It is true the referee finds that the particular acts complained of were done by the city superintendent, by the express directions and under the resolution of the common council, duly passed at a regular meeting. The referee probably does not mean to say that any other direction was given than that contained in the resolutions. If he does, there was no evidence to sustain such finding. All that the common council directed or authorized to be done, was that the obstructions in Butler alley be removed. It was and is claimed by the plaintiff that the locus in quo was no part of Butler alley. It is described in the complaint as ■bounded on the west by Butler alley. The referee finds that at the time of the commission of the wrongs complained of, the plaintiff was in the lawful and peaceable possession of the premises. Assuming the truth of these propositions, viz. that the place where the trespasses complained of were committed was not a part of Butler alley, and that the plaintiff was in the lawful and peaceable possession of the premises, the resolutions of the common council did not direct or authorize the wrongful acts in question; and on that hypothesis, there is no ground for sustaining the action against the defendants. If individuals, in claiming to act as agents of the city, have committed the injuries to the plaintiff, and in doing so have acted without authority, and have gone beyond Butler alley, upon premises in the rightful and peaceable possession of the plaintiff, and which form no part of the alley in question, and there committed the unlawful acts to the plaintiff’s injury, such individuals are personally accountable to the plaintiff. There is nothing in the evidence or finding of the referee to show that the trespasses upon the plaintiff were committed by the agents or servants of the city in the execution or perform [181] anee of the acts directed or authorized by the resolutions, so as to make the corporation liable on the principle of respondeat superior. There is another view of the case equally conclusive against the plaintiff’s right to recover against these defendants. The facts that the locus in quo was in the lawful and peaceable possession of the plaintiff at the time when the trespasses were committed, and that it constituted no part of Butler alley, must not he lost sight of in the consideration of the question of the defendants’ liability. They are essential to the theory of the action, and lie at the foundation of his claim to recover in any view and against any party. The defendants are a municipal corporation, and the citizens of the city of Rochester are the corporators. The common council is the agent of the corporation and the organ through which alone it can act. The powers of the common council are limited and defined by law, and it can no more transcend such powers, than an agent in any other case can hind his principal by acts beyond the scope of the authority conferred upon him. The question in the present case then comes to this r have the common council authority by their agents, servants or otherwise, to enter summarily upon premises, within the corporate bounds of the city, which are owned or lawfully and peaceably possessed by another, and commit the tortious acts which the referee finds have been committed in this case ? The mere statement of the question would seem to indicate an answer in the negative. To maintain the affirmative would he monstrous. Most manifestly it has no such power, and the case is one where the acts of the common council were clearly ultra vires, and for which their constituent the corporation is not liable, even if the ordinance, under the authority of which the wrongful acts are alleged to have been done, had specifically directed the particular acts complained of to be done. [182] [Monroe General Term, September 2, 1861. For the foregoing reasons we are all of the opinion that the judgment appealed from should he reversed, and a new trial granted, with costs to abide the event. Ordered accordingly. Smith, Johnson and Welles, Justices,]