Birdsall v. Clark

Bookes, J.: No question is made as to the authority of the common council to fix and determine the grade of streets and sidewalks of the city of Binghamton, and to direct the necessary work to carry out its orders in that regard. Nor is it denied that the common council may authorize the superintendent of streets to execute its lawful directions in constructing, grading and regulating the streets and .sidewalks of the city. Such power and authority is expressly conferred by the city charter. So the referee held; but he decided further that the defendant Clark, as superintendent of streets, had no right or authority to do or cause to be done the work complained of, under the resolutions of the common council of July twenty-ninth and September twenty-ninth; or, in his own language, “ no legal right or authority to do, or cause to be done the work directed by said common council by resolution of July 29th and September 29th, 1873; and that none of the defendants had the right to take up, grade or relay the plaintiff’s sidewalk.” The respondent seeks to justify this conclusion on two grounds: 1st. That no appropriation had been made for the work by the common council. And 2d. That there was no direction by the common council to the street superintendent “ directing him to do this specific work, which the owner had neglected to do.” It is a complete answer to the first ground above stated, that there is nothing in the charter or ordinances of the city requiring an appropriation to precede the grading and putting in order of streets or sidewalks on the direction of the common council. General power is given that body to direct the [355] work and to cause it to be done. This authority in the common council stands in full vigor, without qualification or restraint, as regards the question of justification for any action taken under it, growing out of the absence of an appropriation to meet the expense. In the section of the charter which prescribes the duties of the street superintendent, after defining his powers, among which is the superintending of all street repairs and improvements, it is declared that he shall discontinue the repairs, etc., when the appropriation therefor should be exhausted. This provision has application to the rights and duties of the superintendent; but in no way abridges or restrains the authority of the common council in its right and power to grade, repair and improve the streets and sidewalks of the city. It does not authorize a third party to treat the common council and the street superintendent as trespassers for proceeding to make and repair streets and sidewalks, for the expense of which work there has been no appropriation. The decision of the referee must be supported on the other ground put forward by the respondent, or it is without justification.. The next question is, whether there was a direction by the common council to the street superintendent to do the work complained of. It seems that there were resolutions of the common council fixing and determining the grade of the street, and directing the curbing, grading and flagging of the sidewalk in front of the plaintiffs premises, full and specific in all necessary particulars. It was now competent for the city authorities to proceed with the improvement, and to cause the sidewalk to be put in the condition authorized by the previous action of the common council. This duty devolved upon the street superintendent; and there was a standing or general resolution authorizing and directing him to proceed and execute the orders of the common council as to all such improvements. This resolution covered the case as well and effectually as if a special resolution had been adopted, subsequent to the' plaintiff’s omission to do the work, directing its performance by the superintendent. Whether or not the plaintiff could be charged with the expense, is quite another question. The resolution directing the improvement specified a time within which the work was to be done, and this, as well as the previous one fixing the grade, was duly served on the plaintiff, and he omitted to com [356] ply with their requirements. Thereupon the work was assumed by the superintendent. But the question whether the proceedings were such as would bind the plaintiff to the payment of the expense is not before us. The question now is, whether enough was shown to protect the defendants against the charge that they were trespassers. Now in this case there was authority in the common council to authorize and direct the improvement. This was done by that body. The defendant Clark, as superintendent, had authority to carry such direction into effect. The other defendants acted under him as his agents or servants, and were justified and protected to the same extent as he was justified and protected, and by the view above taken of the case, the action of those parties had the sanction of law. They were not trespassers; hence the plaintiff established no cause of action against them. We are not at liberty to take into consideration the alleged fact, that the plaintiff’s property will be greatly injured by the work. We are concluded by the action of the common council in that regard. That body was vested with discretionary power, involving the exercise of judgment, in directing the improvement. However injurious to the plaintiff its action in that behalf may be, cannot be here considered. (1 Denio, 595; 20 Barb., 620; 26 id., 133; 38 id., 232.) Acts legally done, although injurious, give no right of action. We are of the opinion that the judgment must be reversed. Judgment reversed, with costs to abide the event, arid, in accordance with the general rule, the reference is discharged. LeaeNed, P. J., and BoaedmaN, J., concurred. Judgment reversed, new trial ordered, costs to abide event; referee discharged.