
    JAMES C. MILLER, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendants.
    
      Board of Education (chap. 386, Laws of 1851) — liaíüity of city for acts of— suboi’dinatc officers of—pow&i's of.
    
    The board of education, created by chapter 386, Laws of 1851, was a body corporate, capable of suing and being sued, and the corporation of the city of New York was not liable either for its contracts or torts.
    The trustees of the several school districts were subordinate officers, and all persons dealing with them were bound, in law, to know the powers conferred upon them, and their limitations, and have no remedy for an abuse or excess of such powers, except against the officers chargeable therewith.
    The estoppel which the courts apply to prevent principals, whether natural persons or business corporations, from denying the authority of their general agents while acting within the scope of their apparent powers, has no application to a public officer, professing to discharge official functions, where the question is as to the extent to which such officer may charge, by contract, the government or department of government which creates or controls him.
    A by-law of the board provided that a certain sum of money should be set apart, to be expended in repairs and incidental expenses for the schools of the different wards, and prohibited the expenditure of any sum in excess thereof. The plaintiff performed services in repairing certain of the school-houses, in good faith, and under the directions of the trustees of the ward. The amount expended by the trastees in repairs exceeded the amount appropriated for that purpose. This action was brought to recover the value of such services. Seld
    
    (1) , that the plaintiff could not have recovered against the board of public education, as the liability was incurred by the trustees in excess of their authority;
    (2) , that the act of 1871, abolishing the board of education, did not create a right of action against the city, which had no lawful existence against the said board.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the G-eneral Term.
    The. action was brought to recover for services performed and materials furnished in repairing school-houses belonging to the board of education. The by-laws of the board contained, among others, the following section:
    Section 61. The annual aggregate of the expenditures in any ward for any and all purposes other than the salaries of teachers and janitors, gas and the payment of books, stationery and fuel furnished through the depository by the committee on supplies of the hoard, shall not exceed a sum equal to thirty-three and one-third cents for each amount of the total average attendance of the schools in the ward, as verified by the principals of the schools, on the thirty-first day of December next preceding.
    
      Amos G. Hull, for the plaintiff.
    The plaintiff had a right to assume that the trustees were dealing within the scope of their powers. (Merchants' Bank v. State Bank, 10 Wall., 604, and cases there cited.) The by-laws of the board could not affect third persons unless expressly brought to their notice. (Mechanics' Bank v. Smith, 19 Johns., 115; 26 Barb., 595.)
    
      H. J. Dean and B. Ddafield SmithT for the defendants.
    The board of education was not bound by the act of the trustees. (Donovan v. Mayor, 33 N. Y., 293; Jones v. Cincinnati, 18 Ohio, 318; Goodrich v. Detroit, 12 Mich., 270; Philadelphia v. Flanir gen, 47 Penn., 382; Philadelphia v. Johnson, id., 382; Wallace v. San Jose, 29 Cal., 180.) The plaintiff was bound to know the limitation of the power of the trustees. (Dillon on Mun. Corp., vol. 1, p. 464; Fairtitle v. Gilbert, 2 Durn. & East, 169; Hodges v. Buffalo, 2 Denio, 110; Brady v. Mayor, 2 Bosw., 173; Appleby v. Mayor, 15 How., 428; Supervisors of Renn. v. Bates, 17 N. Y., 242; Smith v. Mayor, 4 Sandf., 227; 6 Seld., 508; Butler v. City of Charlestown, 7 Gray, 12.)
   Davis, P. J.:

The plaintiff performed the services and furnished the materials for which this action was brought, in repairing school-houses in the twenty-second ward of the city of Hew York, in the year 1870, at the request of some of the school trustees of that ward. The work was done at different dates between March first and December thirty-first of that year, in small jobs of less than fifty dollars, each.

The board of education, created by chapter 386 of the Laws of 1851, was at that time in existence. It was a body corporate, capable of suing and being sued, and the corporation of the city of New York was not liable either for its contracts or torts. The trustees of the several districts were subordinate officers, to some extent under the control of the board of education. The funds of the board to meet expenses incurred by it were provided, pursuant to the third section of the act of 1851, and the fifteenth section of the same act, by the board of supervisors, upon estimates to be made by the board of education, which were additional to the other amounts required by the fifteenth section. The board of education was authorized to make by-laws; and one of such by-laws provided that a sum of money, equal to thirty-three and one-third cents for each “ unit of attendance” at the schools of the ward, be set apart, to be expended in repairs and incidental expenses; and all expenditure for such purposes, in excess of the sum so fixed, was prohibited. The amount allowed, under this by-law, to the trustees of the twenty-second ward, for the year 1870, was $2,566. There was a surplus, in the year 1869, of $138.76, which, in addition to the allowance, gave the trustees $2,704.76, as the sum which they had authority to expend for repairs, in the year 1870. All of this sum was paid out by the trustees, without applying any part of it to the bills of plaintiff now in suit, although other bills for like services were paid to him. By chapter 574 of the Laws of 1871, the board of education was abolished, and a new department in the government of the city of New York, called the department of public instruction, was created, to have the same powers and discharge the same duties which were before vested in the board of education. No provision was made in the act to charge the debts and liabilities of the corporation abolished upon the city. By chapter 112 of the Laws of 1873, a new board of education was created, which succeeded to all the powers vested in the prior board of education, and now is claimed to exist, as an independent corporation, and not as an executive department of the city.

The plaintiff’s action was brought after the last whirl in the wheel of legislation, had turned up the last named board of education. While the department of public instruction had charge of affairs, divers accounts contracted by the trustees of school districts, including, as is understood, the plaintiff’s accounts, were brought to the attention of the commissioners having charge of that department, and were referred to a committee, who made a report to the board of instruction. That report was put in evidence on the trial by the plaintiff. It contains, doubtless, a correct and fair statement of the facts touching the accounts and expenses, with the views of the committee as to what ought to be done in terms that meet our cordial approval. After a recital of divers facts, the committee proposed certain “ preambles and resolutions,” the material portions of which are as follows: Whereas, the school trustees of the several wards, in the administration of their school duties during the years 1869 and 1870 (mainly during the year 1870), incurred for repairs to the school buildings and other incidental expenses, sundry bills now on file in the office of the clerk of this board, in amounts beyond the allowances to said wards for these purposes, made under sections 61 and 62 of the by-laws, amounting in the aggregate to about the sum of twenty-five thousand dollars ($25,000); and whereas, the said bills were incurred from an apparent necessity, and are mainly due to mechanics who performed the work and furnished the materials, in good faith, upon the requisitions of the trustees, and in entire ignorance of any legal obstacle to their prompt payment; resolved, that an application be, and the same is hereby authorized to be made by the officers of this board to the financial authorities of the city and county, for an appropriation of the sum of twenty-five thousand dollars ($25,000), in addition to the amount appropriated for public instruction for 1873, by the board of apportionment, said $25,000, or so much of said sum as may he required, to be applied, when received by this board, in liquidation of all claims for work and materials, incurred by the school trustees of the respective wards, in the years 1869 and 1870, upon their approval by the superintendent of buildings and the committee on buildings, repairs, and furniture, the payment of said claims to be made in accordance with the rules of this board governing expenses incurred by school trustees.”

The preambles and resolutions were adopted by the board of commissioners; but it was not shown that the board of apportionment ever acted upon them, or made the appropriation requested. We regret to say that, upon this state of facts, we think the plaintiff cannot maintain his action against the city; for two reasons. The liability was incurred by the trustees of the school district in excess of their authority. They had no power to subject the board of education to liability for such expenses beyond the appropriation ; and, however thoroughly they may have acted in good faith, in incurring the expenses, that is to say, in making none that they did not regard as necessary or proper, yet the limit of their power could not be extended, on any such consideration. They were charged with certain official duties the performance of which was regulated and limited by well defined restrictions. All persons dealing with them were bound in law to know the powers conferred upon them, and their limitations, and have no remedy for an abuse or excess of such powers, except against the officer chargeable therewith. To hold otherwise would be to unloosen all the agencies of municipal and other governments to create unlimited and ruinous obligations. We have so often been constrained to apply this rule in suits against the city that it seems unnecessary to cite authorities. The plaintiff could not have maintained his suit against the board of education before its abolition by the act of 1871. Having no legal right of action against that board, it is impossible that any logical effect of the law abolishing that corporation, can create a right of action against the city, which had no lawful existence against the board of education. There was nothing in the act which expressly created such a liability, and nothing in the facts from which it can be implied. The subsequent action of the commissioners of public instruction could have no such effect. They recognized a moral and not a legal obligation, and recommended such action on the part of the board of apportionment, as would enable them to discharge that obligation; but, failing to get the money asked for by their resolution, no liability can spring out of their commendable effort.

The question of the liability of the city, in such a case, has been lately passed upon by Robinson, J., of the Hew York Common Pleas, in the case of Green v. The Mayor. That able and careful judge reached the same conclusion we have, as appears by his findings and decision in the case, which we have inspected. The authorities on which the learned counsel for the plaintiff relies, have no application, we think, to a case of this kind. The estoppel which the courts apply to prevent principals, whether natural persons or business corporations, from denying the authority of their general agents while acting within the scope of their apparent powers, has no footing where the relation to the transaction of the alleged agent is that of a public officer, professing to discharge official functions, and the question is, the extent to which such officer may charge by contract the government or department of government which creates or controls him.

The motion for judgment must be denied, and a new trial ordered, with costs to abide event.

Daniels and Barrett, JJ., concurred.

Ordered accordingly. 
      
      Laws of 1851, p. 735.
     
      
       Terry v. The Mayor, 8 Bosworth, 504; Treadwell v. The Mayor, 1 Daly, 123; Ham v. The Mayor, 37 Superior Court Reports, 458; Gildersleeve v. The Board of Education, 17 Abb., 201.
     
      
       Chap. 386, Laws of 1851.
     