
    People ex rel. Fisk Wallace, Resp’t, v. Thomas C. Abbott et al., Trustees, etc., Appl’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 18, 1887.)
    
    1. Trustees of school district—Personally liable for judgment recovered AGAINST THEM IN OFFICIAL CHARACTER—CODE ClV. PRO., 6S 1937, 1929 and 1931.
    A judgment recovered against the trustees of a school district in their official character for the recovery of money binds the trustees individually, and may be collected by execution out of their individual property. It is not a judgment against the school district, but it may under some circumstances constitute a district charge to be paid by a tax on the district.
    2. Same—When costs, etc., against trustee become district charge —Laws 1864 chap. 555, tit. 13, g 7.
    Where the action is brought or defended by the trustees of a school district, by instruction of a district meeting, the costs and expenses incurred by the trustees, and all costs and damages adjudged against them in the action, is made a district charge, which shall be levied by tax.
    8. Same—When district meeting must find in favor of making it a DISTRICT CHARGE—ID., §§ 8, 9 AND 10.
    Where the action is brought or defended without any resolution of a district meeting, no obligation rests upon the district lo indemnify the trustees for costs, charges or expenses, until a district meeting shall have found in favor of the claim and voted that a tax be assessed and collected for its payment, or unless on appeal to the county judge from the refusal of the district meeting to vote a tax, it shall be decided that the account in whole or in part ought to be charged on the district.
    Appeal from an order of the supreme court, general term, second department, affirming an order of the Kings county special term, granting a writ of alternative mandamus directing the defendant to pay money.
    
      T. C. Cronin, for app’lts; Tunis G. Bergen, for resp’t.
    
      
       Reversing 10 N. Y. State Rep., 399.
    
   Andrews, J.

—The relator has mistaken his remedy. A judgment recovered against the trustees of a school district in their official character for the recovery of money, binds the trustees individually, and may be collected by execution out of their individual property. Code Civ. Pro., §§ 1927, 1929, 1931. It was the same under the Revised Statutes. 2 R. S., 476, § 108. It is not a judgment against the school district, but it may under some circumstances constitute a district charge, to be paid by a tax on the district. The subject is now regulated by the statute. Chapter 555 of the Laws of 1864, title 13, §§ 6 to 11, inclusive. It will appear by reference to those sections that where the action is brought or defended by the trustees of a school district, by instruction of a district meeting, the costs and expenses incurred by the trustees, and all costs and damages adjudged against them in the action, is made a district charge, which “shall be levied by tax.” Section 7.

Where the action is brought or defended without any resolution of a district meeting, no obligation rests upon the district to indemnify the trustees for costs, charges or expenses, until a district meeting shall have found in favor of the claim and voted that a tax be assessed and collected for its payment, or unless on appeal to the county judge from the refusal of the district meeting to vote a tax, it shall be decided that the account in whole or in part ought justly be charged on the district. Sections 8, 9, 10.

The relator brought an action against the trustees of school district No. 6, town of Gravesend, to recover the unpaid part of a year’s salary, under an alleged contract of employment for that period, made between him and the trustees. The trustees, in their answer, put in issue the alleged contract. The relator recovered judgment in the action for $748.97 damages and costs, the costs in the judgment constituting about one-half the amount. There was, so far as appears, no direction or instruction of a district meeting that the trustees should defend the action, nor has the district in any way assumed any liability for the costs embraced in the judgment, nor has any application been made by the trustees to the inhabitants of the district to have the costs and expenses audited or allowed. The relator seeks to enforce, by mandamus, the payment of the costs in the judgment out of funds of the district in the hands of, or under the control of the trustees. They have offered, and stand ready to pay the damages awarded in the judgment. It is clear that the school district cannot, under the circumstances disclosed, be compelled to pay the costs awarded against the trustees. The relator has a personal judgment therefor against the individual trustees, and the papers show that he has issued execution thereon, but whether it has been returned does not appear.

It is unnecessary to determine whether the relator is entitled to retain his judgment for costs, in view of the certificate granted by the judge after the costs had been taxed and the judgment entered. But, to enforce the payment of the costs out of the funds of the district, would subject the district to a claim for which, as the case stands, it is in. no way liable. The scheme of the statute is to make the trustees of school districts individually liable upon con-' tracts entered into in behalf of the district. For the purpose of the remedy by action they are treated as the individual contracts of the trustees. The district, in certain eases, is bound to indemnify the trustees. But the district owes no duty either to the trustees or to the other party to the litigation, to pay the costs of a litigation undertaken or carried on without its direction, until they shall have been audited and allowed in the manner pointed out by the statute.

The order of the special and general terms should, therefore, be reversed and the proceeding dismissed.

All concur.  