King v. City of Brooklyn

By the Court, J. F. Barnard, J. Is the city of Brooklyn liable on the contract under which this judgment was obtained ? The contract was not made by the municipal authorities. It was not made by any person appointed by the city, or at their request, or with their assent. The legislature, by law, widened the Fourth avenue in the city of Brooklyn, and appointed a board of commissioners, with power to open and work the same, and until the same was completed all power over the avenue was taken from the common council and given to the commissioners. They may expend $300,000, and no more, which is to be realized from the sale of bonds of the city payable $10,000 in each successive year; this fund to be kept separate, and applied to no other purpose. The legislative act did not provide that the corporation of Brooklyn should accept or assent to it. These commissioners, under this act, have contracted with the plaintiff in their own names, and not in behalf of the city. By the act of [633] the legislature the city could not pay for the work except “upon the order of said board of commissioners.” (Sess. Laxos 1861, p. 684.) In 1862, (Sess. Laxos 1862, p. 182, eh. 63,) the legislature enacted a new charter for the city of Brooklyn, wherein there was created a board of contracts, which only could bind the city by contract, except in a few specified exceptions which do not reach this contract. These facts present three questions. . 1st. Are these Fourth avenue commissioners by operation of law agents of the city ? 2d. Does the new charter supersede the commissioners’ power to contract ? and 3d. Does an action lie against the city until the commissioners shall have given their orders on the city treasurer, and that after the bonds shall have been sold and the proceeds paid to such treasurer ? The cases relied on to establish affirmatively the first proposed question arise under the act to provide water for the city of New York. Before considering the cases it will be proper to examine the difference between that law and the law appointing these commissioners. The New York law, after providing for estimates under it for projiosed objects to be secured by it, required the submission of them to the corporate authorities of New York, and they could accept or reject. If they authorized the commissioners to go on, they xoere to authorize them, to draxo on the city treasux'y for the money required. The objects of the Croton aqueduct law were partly for the private benefit of New York, and the lands to he taken reached far beyond the city limits. The first case cited, (Appleton v. Water Commissioners, 2 Hill, 432,) arose on demurrer. The defendants were sued as a corporation, and the defendants demurred, and had judgment because they were not a corporation. The case of Bailey v. The Mayor &c., (3 Hill, 531,) was an action for negligence. The point being taken that the water commissioners, not being appointed by the city but by the [634] governor and senate, and the negligence charged being the negligence of the employees of the commissioners, the city was not liable. It was decided that the city was liable. The reasons for the liability are thus stated by Judg'e Nelson: “By accepting the charter the defendants thereby adopted the commissioners as their own agents to carry on the work. The acceptance was entirely voluntary; for the state, could not enforce the grant upon the defendants, against their will. This would be so on general principles, (Angell & Ames on Corp. 46, and cases there cited;) but here the charter itself left it optional with the common council to accept or not.” This case was affirmed in the court of errors, (2 Denio, 433,) Senator Barlow, only, taking the broad ground that the commissioners were, by operation of law, the agents of the defendant. It is assumed that the water commissioners were the 1 defendants' agents, upon the authority of Bailey v. The Mayor &c., in the case of Clark v. The Mayor &c. (3 Barb. S. C. R. 288,) and that “it was [the contract] subsequently recognized and adopted by the defendant.” I think these cases fall short of establishing the agency of the Fourth avenue commissioners for the defendant in this case. The defendant has ratified nothing—has assented to nothing. If the city of Brooklyn is liable, it is liable to pay as directed by the legislative act, from the fund, and in the precise manner, therein prescribed, and solely by force of the legislative power of taxation. Does the act of 1862 repeal the act appointing the Fourth avenue commissioners ? General legislation does not apply to specific acts. This act in relation to the Fourth avenue is complete in itself. There is established by it a dominion over a certain portion of the city of Brooklyn, and the commissioners are substituted in the place of the defendant, with certain powers. The necessary funds are provided for, and it could not have been intended, by a general amendment to the charter, to affect this independent jurisdiction. [635] [Kings General Term, December 12, 1864. Does an action lie against the city for work done under a contract with the commissioners ? I think not. The city is commanded to issue bonds to a certain amount, and pay the money to the city’treasurer, which is to be paid out under the order of the commissioners only, and to be used for no other purpose; and for the payment of the bonds, a certain portion of the city, only, is taxed by the act. If the city of Brooklyn does what the act imposes upon it surely it is all that is to be required of it. Payment from this fund can be made but in one way, and that way has not been followed. There has been no order. This particular fund is the only fund with reference to which the plaintiff contracted with the commissioners, and he can be paid in no other way than under and by the act under which he contracted. (Baker v. The City of Utica, 19 N. Y. Rep. 326.) The plaintiff must first produce the orders, and if an order is unjustly refused there is a perfect remedy by mandamus. The commissioners must make return of the facts upon which they refuse to grant certificates, and issue can be taken upon such return; and judgment would pass against them if the plaintiff succeeded upon the issue that a certificate or order be delivered to the plaintiff for such sum as should be found his right, upon the trial. That is the only course, to protect the defendant. I think the judgment should be reversed, and a new trial granted; costs to abide the event. Brown, Lott, Scrugham and J. B. Barnard, Justices.]