Stilwell v. Mayor of New York

By the Court.—Brady, J. 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 [387] connected 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 [388] them. 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.