Sullivan v. Brown

His Honor Judge W. H. Rogers delivered the opinion and decree of the court in the words and figures following, to wit; The City of New Orleans had contracted with one John Heil to prune the trees on its various neutral grounds. It is claimed by plaintiff that Heil transferred to him, on May 13, 1878, his claim against the city for such work amounting to the sum of $581.25. Joseph G. Brown, one of the defendants, was at this date administrator of public accounts of the City of New Orleans, who, by virtue of the provisions of the city charter, has general superintendence of all claims and demands against the City of New Orleans and who was required to keep a record of all ordinances making appropriations for general and special [374] claims; issue warrants on the department of finance for the “payment of all claims; the said warrants to be consecutively numbered, corresponding to the number of the vouchers upon which they are issued, and shall specify the amount or fund on which they are drawn.” When plaintiff on May 13 presented his transfer for payment and registered it, his demand was refused, the official claiming that the law prohibited the administrator of public accounts from drawing or signing any check on the department of finance, no appropriation having been made therefor. On the 27th of May 1878, an ordinance was passed by the City Council and duly promulgated, providing for the payment of the claim of John Pleil — plantiff in presenting his transfer at this date, was informed that his transferrer had by a previous act, dated March 26, 1878, transferred to the Citizen’s Bank his claim to the extent of $500 — that the city had been duly notified thereof on 27th of March 1878 — that for the sum in excess say $81.25, defendant would warrant in favor of plaintiff. This was refused. The two transfers are written on the same apparently official forms — evidently in the same handwriting, and specifying for pruning trees, referring to the same ordinance, No. 4515, differing only in the amount and month. It appears, however, that the notice of transfer given to the city by the Citizen’s Savings Bank — referred to the claim of Heil for curing trees, and counsel for plaintiff insists the transfer was for a claim for planting trees —which was also held by Heil in March. Two facts, however, oppose this conclusion — first, that the revoked ordinances for the planting trees as not having been executed — secondly, an examination of the transfer plainly written for “pruning trees”, at once declares the notice referred to for curing trees to have been a clerical error — ; the act of transfer gives titles, the notice to the city was for its guidance and protection as well as that of the transferee. Defendant, administrator, after considering the matter— paid the Citizen’s Savings Bank and required a bond in favor of the City of New Orleans to secure it against all damages [375] and costs in case it should appear the wrong person had been paid. Under this state of facts the administrator of public accounts and his sureties are sued for the amount claimed by plaintiff and from a judgment against them the sureties have appealed. It is contended that the administrator and his surety are liable to plaintiff because the duty required of him was imperative and specific, one with respect to which he was clothed with no discretion or judgment. These transfers of claims against the city are authorized by ordinance 2066, Administration Series approved April 1, 1873, and the transfers before us refer to this ordinance as the authority for their issuance by the department of improvement under the control of which was the Heil contract. There are two sections of the ordinance which bear directly upon the question before us. Section 2 reads — be it further ordained that salaries, wages or other claims against the city may be transferred by any person owning or holding the same, provided an instrument of transfer or assignment be filed in the department of public accounts. Section 3, be it further ordained that on the filing of a transfer or assignment, in the department of public accounts for any valid claim, the administrator of said department shall immediately note the transfer on the proper payroll, if said transfer be for salary or wages , and all other transfers in the proper book of said department, etc., etc. The duties here imposed and the law of the corporation declaring those provisions upon which and under which certain transactions shall be had with the municipal government are very plain we find no reason to resort to further authority. When the Citizen’s Savings Bank obtained the transfer, it knew that under ordinance 2066 it was necessary to file an instrument of transfer or assignment in the department of public accounts. A simple notice from the transferee to the city that a transfer had been made, referred necessarily to some document evidencing the assignment, and to the original contract of transfer. [376] Such a notice was not an instrument of transfer or assignment —nor was it even contemplated by the ordinance that it should have such an effect, for in section 3: “shall note the transfer in a book on the filing of a transfer or assignment”, and the very instruments themselves are printed and prepared with the directions “deposited in the department of public accounts for registration”........18......... We do not consider the city bound by this notice. Besides there is no evidence that even as to it the law was complied with. When therefore, plaintiff on May 13 presented the instrument of transfer held by him it should have been filed and noted in a proper book of the department — and it does appear as a matter of fact that the instrument of transfer held by the bank was filed only on May 27, 6 days after the passage of the ordinance of payment. Section No. 5, extra session 1870 provides, that if by reason of the failure of the comptroller or the auditing officer of the City of New Orleans or the treasurer or disbursing officer of said corporation, to perform his duty, or if, by reason of the neglect, or malfeasance of them, or either of them, any person or persons, corporation, or corporations, shall be unjustly delayed in the payment of any judgment or demand against the City of New Orleans, and shall not be paid in their due and regular order in which said demands are entitled to be paid, and shall be prejudiced and suffer loss and damage thereby, or by reason of any unjust preference to any other creditors, such person or persons, corporation, or corporations, so injured by the act of either of said officers, shall have a right of action against such officer or officers individually by whose act or acts he or they have suffered loss or damages, and against the surety or sureties on the official bond of each officer and may recover damages therefor against such officer and surety, in such amount as they may establish on the trial of such cause. It is evident if the administrator of public accounts had filed the assignment held by plaintiff on May 13 as it was his duty to have done — or had the bank performed its duty to [377] wards itself on March 27th this litigation would not have occurred, and plaintiff would have had no reason to complain. Under the facts and the law — the payment due him has been unjustly delayed and his claim has not been paid in its due and regular order. The plaintiff has shown a sufficient cause of action — the money which was in the city treasury and which should have been paid to him was paid to another — to say that he should be denied the benefit of a law enacted for the prevention of such acts of negligence as are disclosed by this record, would be requiring a much sterner course of proceeding for the innocent than for the one who caused the injury. He might have the right to sue the bank, the city, and the city may be solvent and the bank ready to respond to any judgment rendered against it, but wrong has been done — he has shown the wrong — and has pursued those from whose act the wrong proceeded and we think with the district judge, his cause a very proper one. Judgment affirmed.