Lake v. Trustees of the Village of Williamsburgh

By the Court, Bronson, Ch. J. Under the charter, the expenses of opening and regulating streets are not made a charge upon the whole village, but only upon the owners and occupants of the houses and lots to be benefited by the improvement. The corporation is the agent or instrument of the landholders having an interest in the matter, to ascertain how much one man ought to pay, and another to receive ; to collect the money from those who are benefited, and see that it is properly applied to the particular object. (Stat. 1827, p. 276, §§ 21 to 25.) No legal duty rests upon the corporation beyond that of setting the proper machinery in motion, and making a right application of the funds when they are received. (McCullough v. Mayor of Brooklyn, 23 Wend. 458.) The warrants, as originally issued, were drawn in pursuance of the authority and duty of the trustees, and made payable out of the funds for [524] opening and improving the avenue, when the same should be collected and paid into the treasury. And after the warrants had been altered under the resolution of the 9th of April, 1841, they amounted to nothing more than a direction or authority to the treasurer to pay the money “ out of the funds of Union Avenue for opening and improving.” No charge upon the whole village, or its treasury, was either created or acknowledged ; but only a charge on the particular fund which ought by law to bear the burden. It is quite probable that the holders, when they got the warrants altered, supposed they had accomplished an important object; but that does not prove that the trustees intended to violate their duty, by transferring the burden from the persons benefited by the improvement to the village at large. They may have granted the petition of the holders of the warrants in the belief that the alteration would not change the legal effect of the instruments ; and in my opinion the legal effect was not changed, whatever may have been the ground on which the trustees acted. This case is not like Kelley v. The Mayor of Brooklyn, (4 Hill, 263,) to which we aro referred. These warrants are sealed instruments, and cannot, therefore, be deemed bills of exchange: and besides, they are not payable absolutely,'but only out of a particular fund, which never had any existence, They contain no words of contract; and I do not see how it is possible to maintain debt, or any other action upon them. They may, perhaps, be used as evidence in some other suit or proceeding; but not as the foundation of an action. The largest warrant on which the plaintiffs seek to recover, if it were not a sealed instrument, might, perhaps, be regarded as a bill of exchange. (Kelley v. The Mayor of Brooklyn, supra.) But as it is not a bill, and contains no words of contract, I do not see how it can be used as a substantive cause of action. The plaintiffs might possibly use it as evidence in support of the money counts, or an account stated. But even then, we could not fail to-see that it contains words—“ and charge the same to the account of Union Avenue”—which point to the real nature of the transaction ; and when the whole truth [525] should come out, it would be apparent that there was no legal claim upon the corporation. And it must be added, in relation to this warrant, that although the trustees ordered new warrants to be issued in exchange for the original ones, it no where appears that they authorized the change which was made in the form of the instrument. And if the trustees had any such power, which cannot, I think, be proved, it is quite clear that the president and clerk could not change the burden from the landowners of the particular district, to the village at large. Whether the plaintiffs have a remedy by mandamus, an action on the case against the trustees for neglect of duty, or can maintain counts against the corporation for work and labor, are questions which do not arise on this bill of exceptions. (See McCullough v. The Mayor of Brooklyn, 23 Wend. 458; Cuyler v. The Trustees of Rochester, 12 Wend. 165.) It is enough for the present to say, that this verdict cannot stand. New trial granted.