
    Francis T. Holder, Plaintiff, v. The City of Yonkers, Defendant.
    (Supreme Court, Westchester Trial Term,
    November, 1898.) '
    1. Municipal corporations — Proof of authority of city officials to execute a lease.
    A lease of lands for a public park executed, under formal resolutions, by the mayor and clerk of a city, under its seal and duly recorded, when followed by occupation under the lease, affords sufficient presumptive proof that the officers who executed the lease had authority to contract for the city.
    8. Same — In the absence of charter provisions, leasing lands for a public park is ultra vires.
    Where a city charter contains no provision authorizing the city to be or to become indebted, by any proceedings or in any manner, for land acquired or taken for the purposes of a public park, it is beyond the powers of the city to lease land which “ shall be used only for the purpose of a public park in the city and, although it has occupied, it is not liable for rent.
    Action to recover money stipulated to be paid as rent.
    Joseph F. Daly, for plaintiff.
    James M. Hunt, for defendant.
   Johnson, J.

This is an action to recover the money stipulated to be paid as rent by an instrument annexed to the complaint. The instrument, purporting to be a lease, is in due form, and according to its letter the defendant is clearly liable to the plaintiff for one and a half year’s rent, amounting to $2,250. The paper is executed by the mayor and city clerk and is under the city’s seal. ' The city now contends that the formal and necessary authority by which alone those officers could make such a contract was not given.

I decide against the city on that point. It seems to me that the formal resolutions and proceedings were sufficient; besides ratification and occupation, under the lease are clearly shown. The paper itself, including the formal and usual affidavit or proof required by the recording act, was' presumptive proof of its own validity. Jourdan v. Long Island R. R. Co., 115 N. Y. 380, 381, 385; Trustees, etc. v. McKechnie, 90 id. 618.

That brings me to the more difficult question in the case. The lease expressly provides that the land demised shall be used only for the purpose of a public park in the city of Yonkers,” and contains a covenant that the city shall pay to the landlord, that is to the plaintiff, the annual rental of $1,500. The remaining question is, had the city of Yonkers the power to make such a contract, its legislative and administrative officers all properly co-operating so to do?

It is well settled that cities are corporations having only such powers as are expressly granted or are fairly implied, or which are essential to the declared objects of the corporation. 1 Dillon on Municipal Corporations, § 89.

We have national parks, county, city and village parks, and in some cases parks built and paid for at the expense of, and for a locality specially bounded and defined for that purpose. Considerable research previously made has convinced me that all such parks were acquired and are maintained under express provisions of statute law. Probably among the oldest parks in this country are the public squares or parks which are very common in many states at the county courthouse and around the public county buildings. But, even for such public squares, statutory authority seems to have been expressly given in this state. 1 Revised Statutes, p 36Í; Edmunds’ Ed., p. 371, § 1. I doubt whether a case can be found where a municipal corporation has acquired, purchased or maintained a public park or square other than under statutory authority. I think it must be held that the city of Yonkers had no power to lease the land, in question for park purposes or to make the contract here-in question, unless such power affirmatively appears. Some of the cases cited to sustain the contrary rule arose on a question of constitutional, rather than of statute law. There can be no question but that the building of a bridge, or the acquiring or maintaining of a park are so far city purposes that a statute authorizing a city to build a bridge or acquire a park is constitutional. It certainly would be competent for the legislature to authorize the city of Yonkers to acquire this or any other land for park purposes, and probably to pay the fair value of the use already had of this land. But none of the authorities cited go to the extent of holding that any power to acquire or maintain parks is inherent, or exists in any city, apart from the enabling power of statute law.

I am referred to section 2 of title YII of the charter of the city of Yonkers, as authorizing this lease. I do not understand that public parks are mentioned or referred to in the charter except in that or the connected sections. Those sections certainly do not authorize the acquisition of lands for park purposes except as local improvements, and by the power of local assessment. I do not find in that title any power to acquire any land for park purposes in any other way, and certainly no power to so acquire by purchase or lease at the expense of the entire city and as a general charge. That system of statute law seems to be practically like that discussed in Beard v. City of Brooklyn, 31 Barb. 142; in Richardson v. City of Brooklyn, 34 id. 577; and in Reilly v. City of Albany, 40 Hun, 413.

To my view the provisions of title YU do not contemplate that the city of Yonkers, shall purchase or acquire lands for park purposes at the general expense and as a general charge; and in case a park were acquired under that title I think it clear that the city could only be held liable for negligence or misfeasance in the performance of its duties in such a proceeding, as such duties are there stated and defined. Beard v. City of Brooklyn, supra.

It may well be that, if the city, proceeding under the provisions of title YII, would have become obligated as a corporation to pay for a park so acquired, the principle involved by the learned counsel for the plaintiff would apply, and that the severe rule, held as to ultra vires contracts, would not be applied in this case. But as I have said I find nothing in the charter of the city of Yonkers authorizing it to be or become indebted by any proceedings or in any manner for land acquired or taken for the purposes of a public park. The United States courts have stated a rule as to municipal corporations which places them largely in the position of private corporations or of individuals as towards officers or agents. But the rule of the United States courts as to the liability of municipal corporations has not been adopted by the courts of this state. Walton v. Mayor, 26 App. Div. 76; McDonald v. Mayor, 68 N. Y. 23; Donovan v. Mayor, 33 id. 291; Lyddy v. Long Island City, 104 id. 218.

The provision contained in section 11 of title YI, authorizing the city to purchase or lease lands for city purposes, does not help the plaintiff. If the city could purchase lands for park purposes, it could doubtless lease them, and I lay no stress upon the fact that the money here in suit is claimed under a lease and not upon a sale of lands. I think that general power contained in section 11 must be limited to the purposes stated in other parts of the charter, and that such power is given merely as a means of executing the power otherwise and elsewhere granted. I find that the contract in suit was beyond the power of the defendant corporation and that the defendant is entitled to judgment.

Judgment for defendant.  