Imagens das páginas
PDF
ePub

dividual. They undoubtedly do, if the charters under which they are elected or appointed give to them greater or different powers, otherwise not. This question has also been considered by the courts. In the case of Mayor, etc., v. Taylor, 11 Abb. Prac. 66, it was held that the corporation counsel of the city of New York had no larger powers, as such, to bind his client, than those connected with the ordinary relations of attorney and client. And very recently, in the supreme court of the United States, in the case of Stone v. Bank, 174 U. S. 412, 423, 19 Sup. Ct. 747, 751, 43 L. Ed. 1028, 1032, Peckham, J., in delivering the opinion of the court, says: "We are also of the opinion that, as city attorney, he had no greater power to bind the city by that agreement than would an attorney have in the case of an individual." We are thus brought to a consideration of the charter of the city of New York. Section 255 creates a law department, the head of which shall be called the "Corporation Counsel," "who shall be the attorney and counsel for the city of New York, the mayor, the municipal assembly and each and every officer, board and department of said city." It further provides that he shall "have charge and conduct of all the law business of the corporation and its departments and boards, and all law business in which the city of New York is interested." There are other special powers given to him, with reference to the opening of the streets, etc., which have no bearing upon the question under consideration. If he has any power to settle and audit claims against the city, it must be found in the provisions of the charter quoted. A careful examination of these provisions fails to satisfy us that the legislature intended to invest the corporation counsel with any other or greater power than that of an attorney employed by an individual to take charge of his legal business. The charter also has created a finance department, of which the comptroller is the head, to whom has been given the express power "to settle and adjust all claims in favor of or against the corporation, and all accounts in which the corporation is concerned as debtor or creditor." Section 149. The power to settle and adjust therefore appears to have been vested in the comptroller, and not in the corporation counsel. This construction leaves each officer supreme in his own department. The comptroller determines whether a claim shall be compromised or not. If it is not compromised, the corporation counsel has the supreme power of determining the nature of the defense that shall be interposed to any action that shall be brought thereon, but not to compromise. If it had been intended to give the corporation counsel power to compromise claims rejected by the comptroller, without his knowledge or consent, then the corporation counsel would, in effect, become the superior of the comptroller, for all of the comptroller's determinations with reference to the audit of claims would be subject to review by the

corporation counsel. Clearly this was not intended. It is claimed that we held otherwise in the case of O'Brien v. Mayor, etc., 160 N. Y. 691, 55 N. E. 1098. We do not so understand that decision. That case is reported below in 40 App. Div. 331, 57 N. Y. Supp. 1039. The facts, as stated in the opinion, are to the effect that the settlement was made by the corporation counsel "with the assent, approval, or acquiescence first obtained of every municipal officer and department having to do with the subject, or having knowledge of the question involved, or who were competent to aid the city in reaching a conclusion as to whether it was wise to make a compromise, and for what amount." The question certified to this court in that case is as follows: "Had the counsel to the corporation, with the concurrence and upon the recommendation of the mayor, the comptroller, and the aqueduct commissioners, the chief engineer of the aqueduct commission, and the special counsel retained by the city in the particular case, power to offer to confess judgment against the defendants in an action brought to recover an amount claimed to be due to plaintiffs upon a contract made under chapter 490, Laws 1883, and where there was an actual controversy between the contractors [the plaintiffs in the action] and the defendants as to the amount due the plaintiffs under the said contract, for a sum of money very much less than that claimed by the plaintiffs in the action, and where the counsel to the corporation and the other public officials named, being all of the public officials who had any authority or power under the statute creating the aqueduct commissions, or under the other statutes in force at the time the offer was made in relation to the subject-matter of the contract, approve of the offer of judgment as a settlement of the controversy advantageous to the city of New York, and where, as a fact, such a settlement was advantageous to the city; the offer of judgment having been made and accepted by the plaintiff's and judgment entered thereon upon the 27th day of December, 1897?" The question was answered by us in the affirmative, and properly so; for in the question it distinctly appears that the compromise was made with the concurrence of the comptroller, etc. The appellate division appears to have entertained an impression that a taxpayer had the right to interpose and appeal in an action in which a person has obtained a judgment against the city on a claim for damages. We know of no such authority. This is not an action in which the plaintiff is seeking to set aside an assessment against his own property, and thus remove a cloud therefrom, but it is brought under the statute to restrain an official illegal act.

It is contended that the question discussed as to the power of the corporation counsel to confess or make offer of judgment against the city is purely academic, so far as this court is concerned, for the reason that the legislature has enacted that he shall not have

it. It appears, however, that the judgment in this case was entered, and, if report be true, numerous other transactions of a similar character took place, before the legislature took action in the matter. The act was local, having reference to the city of New York; and certainly the question cannot be academic in so far as it is involved in this case, or in other cases arising before the passage of the act, or in other cities of the state.

It is also contended that a taxpayer cannot maintain an action to restrain the payment of a judgment against the city without showing that the city was not justly indebted in the amount stated in the judgment. If this be so, then a treasurer who is authorized by statute to pay out the money in his custody only upon a warrant of the comptroller, should he see fit to disregard the statute, and pay over the public moneys upon the order of any other officer, thus completely ignoring the comptroller, the taxpayers could not interfere to restrain his unlawful acts. The statute under which this action was brought authorizes a taxpayer to bring an action to prevent waste, and also to prevent an official illegal act. If the action was based upon the provision of the statute "to prevent waste," then it would be necessary to show that the city was not justly indebted in the amount stated in the judgment; for, if it was, there could be no waste. This action, however, was brought under the other provision of the statute, to prevent an official illegal act. The act complained of, as we have seen, was a false affidavit made by the corporation counsel. He may have supposed that he had authority to make it, and intended no wrong. Still, if the allegations of the complaint are true, it was in fact false, and as such was a constructive fraud upon the public. The question certified should be answered in the affirmative, the interlocutory judgment reversed, and the demurrer overruled, with costs in all the courts, with leave to the defendants to answer in 20 days upon payment of the costs.

PARKER, C. J. (dissenting). The question whether the corporation counsel should, or not, have the power to confess judgments against the city, is purely an academic one, so far as this court is concerned, for the legislature has enacted that he shall not have it. Hence there is no excuse for straining in order to establish the same rule by decision, for the enactment of the legislature is as effective without as with a decision of this court. And yet such a holding is vigorously contended for, although its accomplishment would create a precedent hitherto unknown to our jurisprudence, viz. that a taxpayer may have a judgment against a city set aside in equity without showing that it was obtained through fraud or collusion, and without even questioning that the city was justly indebted in an amount stated in a judgment which

was rendered by a court having jurisdiction of both the parties and the subject-matter. This the city cannot do, and no more can the taxpayer; for he acquires by the statute not greater powers than the municipal authorities, but the right to do what the latter may, but neglects or wrongfully refuses to, do. The purpose of the statute is to enable the taxpayer to prevent waste of the public funds, not to add to the public burdens by bringing suits to correct the pinholes in the procedure by which the rights of the city and its opposing ligitants are justly determined. So the foundation of any such cause of action must rest in the fact that the municipality is about to be compelled to pay that which it does not owe, and it must be pleaded. Here there is no such allegation, either in substance or effect; the complaint proceeding on the theory that it is one of the rights of a taxpayer, under the statute, to have a judgment set aside for a mere irregularity. That it is an irregularity of which the plaintiff complains, and nothing more, is apparent on the very first attempt to analyze it. To speak of the judgment as being founded on an act which was without power may at first convey an impression to the mind that therefore it is void; but such effect can be but momentary, for the so-called lack of power is found to be, not in the court, which had jurisdiction of both the parties and the subject-matter, but in the officer who presumed to make and verify the offer of judgment. Some other officer than the corporation counsel should have made the admission, it is said,-to wit, the comptroller. The corporation counsel supposed he had authority, and made affidavit to that effect, so that the proceedings were, on their face, regular. Now, whenever it happens that judgments are entered on insufficient evidence, or without evidence, or on perjured evidence, or on admissions of counsel not authorized, the judgments are not void; they are only irreg ular. It is elementary law that where the court has jurisdiction of the subject-matter, and the parties are before it by due service of proper process, the jurisdiction is never ousted by the erroneous exercise of the power which it confers, which may be of such a character as to occasion reversal on appeal, or call for an order setting it aside on motion, but the judgment is not void. 1 Black, Judgm. 215, 244. The judgments in question were not entered on confession, but in actions in the supreme court wherein the court had acquired jurisdiction before the offer of judgment was made; and the judgment entered thereon was valid, although it be conceded that the corporation counsel had no right to make the affidavit without the direction of the comptroller. As it is a valid judgment, the taxpayer who seeks to set it aside must at least show merits. Independently of statute, it has always been the practice of our courts from the earliest times, in cases wherein the setting aside of a judgment for irreg ularity is sought, to require it to be shown

that the judgment, as it stands, is unjust, and the defense meritorious. This complaint shows nothing of the kind. It does not allege that the city has suffered or will sustain injury because of the entry of the judgment, nor is it even hinted in the complaint that the entry of the judgment was due to fraud or collusion. To have proved all the facts alleged in the complaint, therefore, would not have entitled the plaintiff to a judgment setting aside the judgment complained of, and hence the demurrer to it was properly sustained.

While concurring generally in the views expressed by Judge O'BRIEN, I desire, by this memorandum, to call special attention to a rule of universal application, the integrity of which is now threatened.

O'BRIEN, J. (dissenting). The plaintiff, as a taxpayer of the city of New York, brought this action against the city and the comptroller, in his official capacity, to restrain them from paying certain judgments recov ered against the city by the other defendants, composing the firm of O'Brien & Clark and Brown, Howard & Co. All of the defendants interested in the judgments demurred to the complaint on the ground that it did not state a cause of action. The demurrer has been sustained in the courts below, and the only question involved in the appeal to this court is whether, upon the facts appearing on the face of the complaint, the plaintiff has any cause of action. The complaint contains the necessary averments to qualify the plaintiff as a taxpayer, and then states the following facts: (1) That the several defendants representing the firms named procured judgments to be entered in the supreme court on the 27th of December, 1897, for various sums, which are separately stated, amounting in the aggregate to $700,000. (2) That the judgments were entered upon claims arising out of the construction of the new aqueduct. (3) That said judgments were entered in actions in favor of the said firms and the members thereof against the city upon offers of judgment for the respective amounts stated in each case, executed and verified by the corporation counsel in behalf of the city, claiming to have authority in that behalf; that the offers were accepted by the parties so bringing the actions, and upon such offers and acceptances the judgments were entered. (4) That the judgments were not entered by any other authority, and, upon information and belief, the corporation counsel had no power to make the offers, and that his acts in that respect are void. (5) That the parties procuring the judgments had demanded payment of the same from the comptroller, and had threatened to commence legal proceedings to collect and enforce the same, to the damage of the city and the waste of its estate. (6) It is averred, upon information and belief, that the corporation counsel has been requested to move in said actions to vacate

the judgments upon the ground "hereinbefore stated," but that he has not done so, and the mction was based on other grounds, to the exclusion of the grounds "herein set forth," and that the motions were denied, and the order denying the same affirmed on appeal, and, upon information and belief, that the plaintiff has no other remedy at law or in equity to prevent the injury complained of. Then follows the demand for relief, to the effect that the several judgments be vacated, and that an injunction issue restraining the payment thereof.

It is believed that every material fact contained in the complaint is embraced in the foregoing statement. It is not alleged or claimed that there was any collusion, fraud, or bad faith in the transaction on the part of any one. It is not even alleged that the claims upon which the judgments were entered were infected with any vice whatever, or that they were not justly due to the claimants. The plaintiff's sole claim is not that the judgments, or any of them, are founded upon any illegal, fraudulent, or unjust demand, or that the creditors or the city offcers who made the offer of judgment acted fraudulently or collusively, but that the judgments were not regularly entered, since the corporation counsel was without power to make the offer. The relief demanded is solely against an irregular judgment, and whether it is such or not is a matter of law, depending upon the power of the corporation counsel as an attorney and a public official. There is no law that permits a taxpayer to interfere by action to vacate a judgment against a city solely on the ground of some irregularity in the procedure by which it was entered. For aught that appears in the complaint, the corporation counsel offered to allow judgment in an action against the city founded upon a just and valid claim, to which the city had no defense. When a party applies to the court to open a judg ment by default, or to set it aside for irregularity, he is ordinarily required to furnish an affidavit of merits, and certainly no less should be required of a taxpayer who invokes the powers of a court of equity to vacate a judgment, not against himself, but the city of which he is a member. He should be required at least to allege that the judgment which he proposes to attack, or the claim upon which it is founded, is infected with fraud or illegality, or that the city has some meritorious defense to the same. The plaintiff's complaint is silent on all these points. It does not even show that the judgment was irregularly or improperly entered, but it does show just the contrary. It appears that the judgment was entered upon an offer by the corporation counsel, under the provisions of sections 738 and 740 of the Code. These provisions required the corporation counsel to prove to the court that he was authorized to make the offer, and the complaint alleges that he complied with the statute, since it is averred in substance that the

offer was accompanied by the usual verification. Certainly the complaint does not aver a noncompliance with these provisions of law, and without the complaint the presumption is that the proper proof was made to authorize the entry of the judgment. So that the judgment described in the complaint is, upon its face, entirely regular; and the authority of the corporation counsel to make the offer, being mere matter of proof, is adjudicated by the judgment itself. What the plaintiff proposes now to do is to show in some way dehors the record itself that there was no authority to make the offer and thus to contradict it. The complaint avers, as we have seen, that the judgment was entered without authority, which is not a fact, but a legal conclusion, and is so treated by the learned counsel for the plaintiff in his argument. Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263; Institute v. Bitter, 87 N. Y. 250; Bogardus v. Insurance Co., 101 N. Y. 328, 4 N. E. 522. His contention is that the counsel to the corporation, though possessing all the powers of an attorney in an action, superadded to those conferred upon him by statute as a public officer, had no power to offer judgment in a pending action. The statute devolves upon him full charge of all the law business of the city, and designates him as an officer upon whom all legal process against the city may be served. Certainly the power to make the offer was not conferred upon any other officer, board, or body; and, if it was not possessed by the head of the law department of the city, it did not and could not exist at all. The duty imposed upon him exclusively to have charge of all the law business of the city necessarily involves the exercise of judgment and discretion, and embraces the power to offer judgment when, in his opinion, that course was for the best interest of the city. It is said that the power is liable to be abused, but so is every power conferred upon a public officer. The argument that power may be abused does not prove that the power does not exist, and the learned counsel for the plaintiff has failed to point out any other officer, department, or body, connected in any way with the city government, where the power could be more safely or properly lodged, or where it would be more likely to be exercised in the interests of the city.

But since this court has expressly affirmed the existence of this power in the corporation counsel, as we shall see hereafter, it is unnecessary to discuss this feature of the ease upon principle, but it may be well to view it in another aspect. It is established law that a judgment cannot be attacked by a snit in equity on the ground that it was entered without authority, but the proceeding must be by motion in the action. Vilas v. Railroad Co., 123 N. Y. 440, 25 N. E. 941, 9 L. R. A. 844, and cases there cited. pears on the face of the complaint that the city did avail itself of that remedy through all the courts, and failed. The motion was

It ap

made upon all the facts that appear in the complaint, with many others that do not appear. Not only was the question of authority involved in the motion, but the merits of the claims upon which the judgment is based, as well, and the motion was denied, and that order was affirmed in this court. O'Brien v. Mayor, etc., 40 App. Div. 331, 57 N. Y. Supp. 1039, affirmed in 160 N. Y. 691, 55 N. E. 1038. The plaintiff now proposes to take up the case where the city was compelled to leave it, and litigate the whole matter over again. Of course, if the plaintiff is not concluded by the decision against the city, made without collusion or fraud, then there is no reason why some other taxpayer may not take up the case, and litigate the whole matter again, should the plaintiff fail in this action, and thus the controversy would be continued indefinitely. The plaintiff, as a taxpayer, has no rights in this action, except such as are derived from some act of the city or its officers. The wrong, if any, is to the city, and not to the plaintiff personally. The position of the taxpayer in such an action is analogous to that of a stockholder in a private corporation seeking to impeach some corporate transaction. Whatever will bar or estop the city or the private corporation will bar or estop the taxpayer or the stockholder. Alexander v. Donohoe, 143 N. Y. 203, 38 N. E. 263. It cannot be doubted that the final order upon the application by the city to vacate the judgment in question concludes it, and is a bar to any other application for that purpose. A final order in such an application has the same effect as a judgment in an action. The city is precluded by the decision from raising any question involved or decided in that motion, or which could have been litigated or decided. These propositions are fully sustained by the authorities cited in the learned opinion below. Culross v. Gibbons, 130 N. Y. 447, 454, 29 N. E. 839; Ashton v. City of Rochester, 133 N. Y. 187, 30 N. E. 965, 31 N. E. 334; Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55; Manufacturing Co. v. Walker, 114 N. Y. 7, 20 N. E. 625; Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. 292; Barber v. Kendall, 158 N. Y. 401, 53 N. E. 1. The application to vacate, and the decision denying the same, appear upon the face of the plaintiff's complaint, and it follows that he is also concluded by the former adjudication. He cannot do what the city is estopped from doing. If he had alleged that the former proceeding was fraudulent or collusive, then the effect might be different, but he did not, and presumptively could not. It is said that this action is based upon narrower ground than the motion by the city to vacate. The only difference in the two applications is that the former presented all the facts and circumstances to the court, while the present one presents only a part of them. But surely that cannot change the effect of the decision against the city. If there was no authority in the corporation counsel to offer judgment, then the city ought to have succeeded in the

motion; but, since it failed, the point must have been decided adversely to it, and so it appears from the decision which was adopted by this court. O'Brien v. Mayor, etc., supra. Moreover, it has been held in other cases that a motion of that character made by the city, when finally decided, binds not only the immediate parties, but the citizens and taxpayers as well. They are deemed to be represented by the city in the proceedings, and, in the absence of fraud or collusion, are bound as effectually as the city itself. Ashton v. City of Rochester, supra; Osterhoudt v. Rigney, 98 N. Y. 223; Rogers v. O'Brien, 153 N. Y. 357, 47 N. E. 456. This case involves much more than the narrow question concerning the power of the corporation counsel to offer judgment in a pending action, even if it was still an open one, and not conclusively settled against the plaintiff, as I think it is by the decision of this court in this and other cases. O'Brien v. Mayor, etc., supra; Mark v. City of Buffalo, 87 N. Y. 184; People v. Stephens, 52 N. Y. 306; People v. Common Council of City of Auburn, 85 Hun, 601, 33 N. Y. Supp. 165. The legislature has just changed the law in that respect,-a clear recognition of the fact that it was otherwise before. Chapter 284, Laws 1900. But the plaintiff's complaint is defective in the other particulars which have been pointed out, even if the plaintiff could impeach the judgment record and the affidavit of the corporation counsel as to his authority to make the offer,-a proposition that is more than doubtful in the absence of any allegation of fraud. Conceding every fact alleged, they furnish no ground for an action in behalf of a taxpayer to impeach the judgment; and, moreover, it appears from the complaint that the plaintiff is seeking to litigate questions already decided against the city, and consequently against the citizens and taxpayers, since they constitute the city. 1 Dill. Mun. Corp. § 40. For these reasons, the judgment should be affirmed, with costs, and the question certified answered in the negative.

BARTLETT, VANN, and CULLEN, JJ., concur with HAIGHT, J., for reversal. PARKER, C. J., and O'BRIEN, J., read for affirmance, and LANDON, J., concurs.

Judgment reversed, etc.

PEOPLE ex rel. PERCIVAL v. CRAM et al., Com'rs of Docks and Ferries.

(Court of Appeals of New York. Oct. 2, 1900.) MUNICIPAL CORPORATIONS GREATER NEW YORK CHARTER-OFFICERS AND EMPLOYÉSRENOVAL-CIVIL SERVICE RULES-CONSTITUTIONAL LAW-DELEGATION OF LEGISLATIVE POWER.

1. Under Greater New York Charter (Laws 1897, c. 378) § 1563, providing that subordinates of departments who were removable only for cause before consolidation should remain in the employ of the city subject to removal for cause, and declaring that heads of depart

ments shall have the power to remove persons assigned to service under them, a dock master in the department of docks, who was removable at will before consolidation, and was not a veteran soldier or volunteer fireman, is still subject to removal at will by the commissioners of the dock department.

2. Rule 42 of the New York City municipal civil service commission provides that no removal of any person in the classified service of New York City shall be valid until a statement of the cause thereof has been filed with the commission, and a copy furnished to the person to be removed, and an opportunity given for a written explanation. Relator was removed summarily from his position as dock master, without a chance for explanation. Held, that he was not within the protection of the rule, since he was a public officer, and not an employé.

3. Const. art. 10, § 3, declares that, where the duration of any office is not provided by the constitution, it may be declared by law, and, if not so declared, it shall be held during the pleasure of the appointing authority. Greater New York Charter (Laws 1897, c. 378) § 1543. authorizes heads of departments to appoint and remove all their subordinates, except as otherwise expressly provided. Rule 42 of the New York City municipal civil service commission provides that no person shall be removed from the classified service of the city until a written statement of the reasons therefor has been filed, and a copy furnished to the person removed, and an opportunity for explanation given him. Held, that the commissioners of the dock department had power to remove a dock master whose term of office was not provided by the charter, unrestrained by such rule, since, under the constitution, permanence of tenure of office by a public officer must be by direct legislative action.

Appeal from supreme court, appellate division, Second department.

Mandamus by the people of the state of New York, on the relation of Thomas J. Percival, against J. Sergeant Cram and others, commissioners of docks and ferries of the city of New York. From an order of the appellate division (64 N. Y. Supp. 158) affirming an order of the special term (61 N. Y. Supp. 858) granting a peremptory writ, defendants appeal. Reversed.

John Whalen, Corp. Counsel (William J. Carr, of counsel), for appellants. Joseph A. Burr, for respondent.

CULLEN, J. The relator at the time of the consolidation of the two cities was serving as a superintendent of docks in the office of the comptroller of the city of Brooklyn. Under the plan formulated by the mayors of the two cities and the county officers in the other consolidated territory, as prescribed by section 1536 of the Greater New York charter (chapter 378, Laws 1897), he was transferred to service in the comptroller's office in the city of New York. There was an error in this plan of transfer; for, under the charter of the consolidated city, the control of the docks did not fall within the department of the comptroller. An amended plan of transfer was thereafter made, by which the relator was assigned as dock master in the department of docks. Subsequently the relator was summarily discharged by the commissioners of the department of docks without a

« AnteriorContinuar »