
    SUPREME COURT.
    Romeyn Van Valkenburgh agt. The Mayor, &c., of New York.
    No act of the legislature appointing commissioners to perform certain duties in and for the city of New York, is binding upon the city, where there is no accepfance of the act by the corporation.
    
      New York General Term,
    
    January, 1865.
    
      Before Leonard, P. J., Barnard and Sutherland, Justices.
    
    Appeal from judgment at Special Term.
    
      for plaintiff.
    
    John E. Develin, Corporation Counsel for defendants.
    
   By the Court, Barnard, J.

The legislature of the state of New York (Sess. Laws, 1860, chap. 505, page 1003), enacted that certain persons therein named be constituted a board of commissioners “ to locate and erect in the city of New York a suitable building, to be used as a court house and place of detention of persons brought to the police court in said district, and the ground and buildings so to be purchased and erected shall be the property of the city of New York.”

It is also, by the act, provided that the board of supervisors of the county of New York shall levy by tax an amount not, exceeding $50,000. Under this act the commissioners have selected and agreed to buy of plaintiff for and on behalf of the city the lands described in the complaint, and the city refuses to accept the deed, and the plaintiff brings this action against the corporate authorities to compel a specific performance of the contract. The defendant, by demurrer, presents this question—are the defendants liable for the acts of this commission ? If these commissioners are by force of the act agents of the city, then this demurrer is not well taken, and plaintiff is entitled to judgment.

The first case in our court which I find bearing upon this question is Appleton agt. The Water Commissioners of New York, (2 Hill, 432). These commissioners were appointed by the governor and senate to construct the Croton aqueduct for the benefit and at the expense of the city of New York. It was held that the water commissioners were not liable, and that the remedy was against the city. The reasons for this judgment are not given.

In Clark agt. The Mayor, &c., of New York, (4 Comstock, 338), it was decided that the judgment, for work done under a contract with the Croton Water Commissioners, against the Mayor be reversed for errors on the trial, and the question of the defendants’ liability is not noticed.

In the case of Bailey et al. agt. The Mayor, &c., of New York (5 Hill, 531), it was distinctly adjudgéd that the Water Commissioners were the agents of the city, but upon the ground that by the terms of the Water Commissioners’ act the city had the power to accept the charter or reject it, and the common council did by resolution accept it, Mr. Justice Nelson using this language: “ The acceptance was entirely voluntary, for the state could not enforce the grant upon the defendants against their will. ' This would be so on general principles (Angel and Ames on Corporations, 46, 50, and cases cited); but here the charter itself, left it optional with the common council to accept or not.”

This last case went to the court of errors, (The Mayor, &c., of New York agt. Bailey, 2 Denio, 433), and was affirmed; one senator only — senator Barlow — holding the broad principle that the act of itself made the commissioners agents of the city.

I think, therefore, that the cases fail to establish the agency of the commissioners for the defendant in this case, where there was no acceptance of the act by the defendants.

It requires clear authority to warrant this claim. An agent established by law to purchase property for the defendant, and at its expense and without its consent, is an extraordinary assumption of power. I cannot yet assent to it.

Judgment affirmed, with costs.

Leonard and Sutherland, JJ., concurred.  