
    SAGE v. CITY OF BROOKLYN.
    
      City Court of Brooklyn; General Term,
    
    July, 1880.
    Eminent Domain.—Municipal Corporation.—City Officers.— Awards Payable Out of Assessments.—Order of Court.
    Land taken for the purpose of widening a street, in a city, is taken for a municipal improvement and not for a State enterprise, although commissioners who are not city officers are to a special and limited extent intrusted with the undertaking.
    
    
      Where an award is payable out of assessments which have not been collected, the land assessed should be sold at the earliest possible time consistent with reasonable diligence.
    
      Where a part only of the assessments out of which awards are payable, have been collected, the awards should be paid pro rata, and not in the order of their presentation.
    
      And the payment of some awards in full by the comptroller, in obedience to an order of a court, will not relieve the city from the duty of paying to the owners of the other awards their ratable portion.
    
    
      Appeal by the defendant from a judgment rendered" at. special term.
    The action was brought by Henry W. Sage, and Douglas Boardman, executor, and Jennie McGraw, executrix, under the will of, John McGraw, deceased, against the city of Brooklyn, to recover the amount awarded the plaintiffs for an easement in lands, taken in the construction of Sackett street boulevard.
    The facts are sufficiently stated in the opinion.
    
      William C. DeWitt, for defendant, appellant.
    The title of the right of way is not in the city, but was acquired by the people of the State, through a commission acting in their behalf, and for whose acts the city is not liable (Martin v. Brooklyn, 1 Hill, 545; New York & Brooklyn Saw Mill Co. v. Brooklyn, 71 N. Y. 580; Lorillard v. Town of Monroe, 11 Id. 392; People v. Supervisors, 11 Id. 563, 571; Russell v. Mayor, 2 Den. 464, 473, 481; Maximillian v. Mayor, 2 Hun, 263; 62 N. Y 160; King v. City of Brooklyn, 42 Barb. 627; Cornell v. Butternut Turnpike Co., 25 Wend.. 365; People v. Kerr, 27 N. Y. 188). The commissioners of Prospect Park are not city officers, but are State agents. So far as the comptroller, tax collector and registrar of arrears acted, they acted as State agents. In any case the city is not liable for their negligence by exemption, clause in its charter. The assessment being fixed by law, its payment must, in theory of law, be regarded as certain (Bloodgood v. Mohawk & H. R. R. Co., 18 Wend. 9 ; Baker v. Johnson, 2 Hill, 342 ; People v. Haden, 6 Id. 359 ; Rexford v. Knight, 11 N. Y. 308, 313, 314). The claims being therefore assured of payment, were paid in the order of presentation. In so doing the comptroller was not negligent, as the payments were made in obedience to a mandamus. There was no negligence in not selling the property.
    
      Joshua M. Van Colt and John Winslow, for the plaintiff, respondent.
    The land having been taken by the city for public use, it became bound to pay the award within a reasonable time (People v. Hayden, 6 Hill, 359; Chapman v. Gates, 54 N. Y. 132, 144; Matter of Sackett street, 74 Id. 95; Connecticut R. R. Co. v. County Commissioners, 125 Mass.; Cooley Const. Lim. 561). The city is the actor throughout; it took and used the property, and for a non-performance of the duties imposed upon it an action will lie (Hover v. Barkhoof, 44 N. Y. 113; People v. Supervisors of Otsego, 51 Id. 401; People v. Supervisors of Livingston, 68 Id. 114; Brewster v. City of Syracuse, 19 Id. 116; Town of Guilford v. Supervisors of Chenango, 13 Id. 143; McCullough v. City of Brooklyn, 23 Wend. 458; Beard v. City of Brooklyn, 31 Barb. 142; Cummings v. Brooklyn, 11 Paige, 596; Baldwin v. City of Oswego, 1 Abb. Ct. App. Dec. 62; Ganson v. City of Buffalo, 2 Id. 236; Clark v. Miller, 54 N. Y. 528; Marsh v. Town of Little Valley, 64 N. Y. 112; Sibley v. City of Mobile, 4 Am. L. T. Rep. N. S. 226; United States v. Clark County, 5 Rep. 131). The city, having received part of the fund, became a quasi trustee, and the beneficiaries were entitled to share in it ratably. The right to be paid an award is actionable, and a resort to a mandamus is not proper where there is an adequate remedy (Cooley Const. Lim. 561; 10 Wend. 393; 54 N. Y. 528; 64 Id. 116). The obligation sought to be enforced is that of the city, and the existence of an actual fund is not a condition of the right.
    
      
       Under the statutes relating to the Croton aqueduct, which provided for the appointment of five persons, to be known as the water commissioners for the city of New York, having general charge and superintendence of the work, with power to contract and authority to draw on the comptroller,—Held, that they were not a corporation, and could not be proceeded against as such. The remedy would be against them individually, if personally liable, or against the city if they contracted as public officers, or against themselves by mandamus, if they neglected official duty. Appleton v. Water Commissioners of N. Y., 2 Hill, 482.
      The dam built by the commission created by acts of the legislature to build the Croton aqueduct for the city of New York was carried away in a freshet, by reason of negligence in the plan or in construction. The plaintiff recovered over §63,000 damages, sustained by him by injuries to his property on the stream below.—Held, that the city was liable, either on the ground that the commissioners were agents of the city, or on the ground that the city was liable for the condition of work done for them on their property. Bailey v. Mayor, &c. of N. Y., 5 Hill, 531; 2 Den. 433.
      The city of Chicago, in exercising the power of widening and deepening the Illinois and Michigan canal, for the purpose of cleansing the Chicago river, conferred upon her by the act of February 16, 1865, .cannot be regarded as the agent of the State, and, therefore, exempt from liability for an injury caused to private property. Chicago v. McGraw, 75 Ill. 566; citing City of Chicago v. Torrey, 60 Id. 384.
      The franchise of raising money for public use by a tax or upon the credit of the municipality, conferred by the legislature upon a munioi pal corporation, is not exercised by the corporation as agent of the State; the relation of principal and agent does not exist between the State and the corporation. The former is neither entitled to the fruits of the franchise, nor responsible for the acts of the municipality in its exercise. The State is merely inhibited by the constitution from doing .any act or passing any law tending to lessen the security or to impair the obligation of any contract which the municipality has, by authority of lav/, entered into. People v. Ingersoll, 58 N. Y. 1, 30.
      An act of the legislature appointing commissioners to erect a local public work for a municipality, and requiring the municipality to raise its expenses by taxation, does not, without assent on the part of the municipality, make the commissioners agents of the city and their contracts binding on the city. Van Valkenburgh v. Mayor, &c. of N. Y., 38 How. Pr. 239.
      
        Plaintiff, a city contractor, objected to completing his contract because more work was required than had been represented, and the street committee told him he must finish his contract, and, if he had any claim for extra work, present it. He did so, and his claim for extra work was referred to arbitrators, who made their award in his favor. Upon this, the common council adopted a resolution directing the street commissioner to calculate, in the assessment to be made, the amount of the award, within a fortnight. The common council rescinded this resolution. Held, that, whether they had power to arbitrate or not, their resolution to add the sum to the assessment was substantially acknowledging the debt-; and a promise to pay it, when assented to by the plaintiff, the claim became, if it had not been before, valid against the defendants to that extent. Of course the resolution could not then be rescinded except by the mutual agreement of the parties. The last resolution of the corporation was consequently inoperative. Brady v. Mayor, &c. of Brooklyn, 1 Barb. 584, 591.
      The State cannot be compelled to proceed with the erection of a public building or the prosecution of a public work at the instance of a contractor therefor. A law of the State suspending or discontinuing a public work under contract, or providing for its performance by different agencies, is not subject to any constitutional objection because the change authorized involves a breach of the contract; the obligation of the contract is not impaired by the refusal of the State to perform it; the contractor, if not in default, has a just claim against the State for damages resulting from the breach, and a remedy by appeal to the legislature. Lord v. Thomas, 64 N. Y. 107.
      Where work was done for the city of Hew York, under a contract that payment should be made only upon the confirmation of the assessment for the work,—Held, that the neglect or refusal of the board of revision and correction of assessments, although illegal, to confirm the assessment, was not imputable to the city so as to support an action for the money due for the work before the assessment had been confirmed, and that the remedy of the contractor was by mandamus to compel the board to confirm it. Tone v. Mayor, &c. of New York, 70 N. Y 157; affi’g 6 Daly, 344.
      The legislature may arrest an improvement (Cleveland v. Board of Finance of Jersey City, 38 N. J. L. 259); and may, by implied ratification, dispense with the preliminary formalities and give contractors a legal right to their equitable compensation. Id.
      
      
        Under a statute providing for the election of a board of water commissioners, and that after their “election” the mayor, &c., should have no further power over the work,—He Id, that the board were to be mere agents of the city; and the Mayor, &c., could act until they were not only literally elected, but also duly qualified. (Atlanta Water-Works Case.) Wells v. Atlanta, 43 Ga. 07.
      Under chapter 303 of Laws of 1870—providing that the mayor of the city of New York should appoint a commissioner, who, together ■with two police justices of the city, should be commissioners to erect a local court-house,—the commissioners, being charged with a local municipal purpose, and having no interest in or power over the building except for the purposes of its erection, are to be deemed agents of the city, and not, as in the case of the health board, to whom the entire management and government of the department of health, including the appointment of subordinates, is vested, an independent body, for which the city is not liable. The court-house commissioners, charged only with the duty of erecting, on ground belonging to the city," a building for their use, and to be their property, and the commissioners’ power to end when they had. performed the duty, are agents for the city, and the city is liable upon their contracts. Wood v. Mayor, &c. of N. Y., 7 Hun, 164.
      The city of Brooklyn is not liable in damages to a private person, for the failure of the common council to repair the docks of the Gowanus canal, as directed by statute. For that purpose, the common council are not the agents of the city, but rather of the State, because the improvement was not for the benefit of the city, but that of adjoining owners. New York, &c. Saw Mill Co. v. City of Brooklyn, 8 Hun, 37.
      ' "As a corporation can act only through agents duly elected or appointed, pursuant to the constitution and the act of incorporation, the legislature may prescribe the powers and duties of such agents, and the corporation will be liable for their acts and omissions, unless exempted from such liability by statute. Although their authority emanates directly from the legislature, they are agents of the corporation. They represent the corporation, and powers and duties with which they may be clothed by the act of incorporation are, in judgment of law, corporate powers and duties. That is the principle of the case of Conrad v. Trustees of Ithica, referred to in 16 N. Y. 158, and other kindred cases. Id.
      
    
    
      
       A county board having lawfully ordered a tax to be levied to pay off certain railroad bonds, cannot, after its collection, restrain the county treasurer from making the payment. State ex rel. Meier v. McCrillus, 4 Kans. 250.
      As a defense to an action against the treasurer, the order of the county commissioners would amount to nothing; as it would be no valid answer to the claim to say that the board had directed him not to do that which the law had enjoined upon him as a duty to do. In this case it does not appear in what form the law enjoined this duty. Id.
      
      The commissioners of charities and correction of New York, whose management of their department is wholly independent of the common council, and who own for their purposes a school-ship, are not agents of the city in its management, and the city is therefore not liable on their contract for repairs. In the administration of their duties they act not as agents of the municipal corporation, but as public officers, agents and servants of the public at large. Lawrence v. Mayor, &c., of N. Y., 54 How. Pr. 255.
      The commissioner of public works of New York, who, under the charter (I. 1873, c. 335), is one of the executive officers whose contracts are in the name and for the benefit of the city, are regulated by the common council, and whose duties are subject to the requirements of the common council and the city, is liable for damages resulting from defects in the Croton Water Works under his charge. McAvoy v. Mayor, &c. of New York, 54 How. Pr. 245.
      Under the statutes relating to the Rochester Water Works, which provided (1 L. 1872, e. 387, p. 937) that the mayor should appoint water commissioners, who should be known as the board of water commissioners of the city of Rochester, and who should make plans for water works, and, if approved, construct the works, and who (by 2 Id. 1845, § 23, c. 771) were empowered to take proceedings to condemn the necessary land,—Held, that the commissioners could take such proceedings in the name of the board, and need not proceed in the name of the city. Matter of Rochester Water Commissioners, 66 N. Y. 413.
      For the cases on what constitutes “a city purpose,”&c., see 5 Abb. N. 0. 467, note.
      As to the mode of proceeding in claims against the State, see page 128 of this volume.
      
        County supervisors were authorized by the legislature to raise by tax what might be necessary to pay certain claims, and “the comptroller" was directed to pay them when “the same shall be judicially determined." The court, by mandamus, ordefed the supervisors to raise the amounts certified to by the certifying officer, and, on application for a mandamus against the comptroller, adjudged that the judicial determination be had in that proceeding for a mandamus, and referred it to a referee to ascertain the amount due; and provided that, on the coming in of the report, a peremptory writ issue.—Held, the phrase, “judicially determined," when used in reference to a claim, the only redress upon which can be obtained by mandamus, must be intended of that method of judicial determination. As there was no remedy by action, the judicial determination might be had in a proceeding by mandamus. [In this case the objection that the mandamus should have been against the city does not appear to have been taken.] People ex rel. McSpedon v. Haws, 34 Barb. 69.
      Under a statute requiring supervisors to raise such sum as may be found due to certain claimants, and the comptroller to pay said amount when the same shall be judicially determined, the judicial determination is not a condition precedent to the authority of the board of supervisors to raise the money. A mandamus may issue to compel them to raise it, leaving the judicial determination to be had before payment. People ex rel. Wetmore v. Supervisors of N. Y., 3 Abb. Ct. App. Dec. 567; S. C., 34 How. Pr. 379.
      XVhere the charter of a city vests the power of collecting and receiving taxes, not in the common council, but exclusively in the city treasurer, and collectors appointed by him; and the mode in which taxes shall be collected, when not paid voluntarily, is specifically pointed out, so that the common council have no duties or powers in connection therewith, except to cause the assessment roll, with warrants annexed, to be delivered to the treasurer (Charter of Rochester, L. 1850, c. 202), they have no power to declare by resolution that payment of a disputed tax, without the issue of a warrant, shall be regarded as a payment under duress.' A provision in the charter that the common council “shall have the management and control of the finances, rights and interests, buildings, and all property, real and personal, belonging to the city, and may make such rules and by-laws relating to the same as they shall deem proper and necessary, ” does not alter the case. Commercial Bank of Rochester v. City of Rochester, 42 Barb. 488.
      Where a statute directed the common council to make an appropriation for a specific work, and if they should neglect or refuse to do so, directed the mayor and comptroller to do so, and that their appropriation should have the effect of one made by the common council,— Held, that this was in effect an appropriation direct by the legislature; the proceedings of the city officers were merely ministerial, and, U seems, unnecessary. Brady v. Mayor of N. Y., 35 How. Pr. 81.
      See also, Kendall v. United States, 12 Pet. 524, 528, 612—where it was held that the duty of the postmaster-general to perform a ministerial act which he was “ directed ” to perform by act of congress could not be restrained by the president.
      An act by which a public officer is directed ” to make a contract for a public work is imperative. 6 Op. Att. Gen. 551; compare Marbury v. Madison, 1 Cranch, 137; Lamar v. Dana, 18 Int. Rev. Rec. 163.
    
    
      
      See Gray v. City of Brooklyn, 10 Abb. Pr. N. S.
    
   Neilson, Ch, J.

The case was tried at the special term without a jury, and the appeal taken from the judgment entered upon findings of fact and of law. One of the parties in interest, Mr. McGrraw, having departed this life, his executors join as plaintiffs.

The question involved is, whether, under the special circumstances, the plaintiffs are entitled to recover the award fixed for property taken in the improvement of one of our streets. It is obvious that compensation should be made, as the property has been taken under legislative direction, and is now in the use of the city. But it is claimed that the city is not liable. First, by reason of the terms of the statute authorizing the change of the street, and Secondly, because the money could not be raised by the sale of the lots on which the assessment was laid.

Sackett street had been laid down on the commissioners’ map of the city prior to this improvement. The statute of 1868 directed the commissioners of the park to take proceedings to widen that street and alter the map. They were to fix the district of assessment, and apply to the supreme court of this district, upon personal notice to the counsel of the city, for the appointment of three commissioners to estimate the expenses and damages, the amount to be paid to the owners of land required to be taken, and the benefits for which the owners of adjacent property should be assessed, and to apportion and assess the amounts thereof. It was also provided that the laws then in force relating to widening, opening and improving streets and avenues in the city of Brooklyn, and the levy and collection of the assessments for such improvements, and the lien thereon, should apply, except as to the special duties imposed upon the park commissioners.

Those commissioners took the proceedings directed. The three commissioners of assessment were appointed and their report was confirmed by the court. Sackett street was widened and improved. The assessments for widening the street, amounting to $334,688.63, were confirmed April 13, 1870, and in December, 1878, $50,717.10 thereof remained unpaid. Owing to the condition of the books, in the departments relating to taxes, assessments and sales, the testimony is not very clear ; but, it appears that of the land assessed for the Sackett street improvement four hundred and sixty-eight parcels remain unsold. There have been no sales by the city, on that account, since 1871.

Property which belonged to Sage and McGraw, undivided in interest, was assessed for alleged benefits $13,113, and that was paid in April, 1870; for other portions of their property, taken for the street, the sum of $7,135 was awarded, and was payable to them, but remains unpaid.

These general statements may suffice to enable us to consider the special questions raised by the learned counsel for the defendant.

It was claimed on the argument that Sackett street was improved by a special commission under acts of the legislature, the actors charged with the performance of specified duties not having been the agents of the city. I am of opinion that this was a municipal improvement, a work done by and for the city.. It was so because of its relation to the city ; was thus treated in the statute of 1868, and in the supplemental acts of 1873 and 1873. It seems obvious that such legislation, quite common in respect to local matters, does not make the work a State enterprise.

Nor does the question of agency present any difficulty. The park commissioners viere designated to initiate and carry forward the movement to a special and limited extent. They were not clothed with power to fix the assessment to be collected or the damages to be allowed ; that power was given to the three commissioners appointed by the court, as in other cases. Nor were they to collect the assessments or pay the claims ; those duties devolved upon the city, and the laws then in force as to such matters were made applicable. Thus it was that the records of the proceedings, of the liens for assessments, of the damages awarded, of the sales made, and of the payments on account of this improvement, were kept in the offices of the city, in common with other like records ; thus it was also that the city could make sales for unpaid assessments and give title to the purchasers.

It is sufficient to say, in regard to the matter set up in the third part of the answer, that no claim is made against the officers of the city. The claim, if one exists, is against the city ; if negligence is chargeable it is the negligence of the city.

Testimony was introduced as to the omission to sell the residue of the parcels. It does not appear why those parcels were not sold with the others, in 1871. I do not, after reading the evidence, remember' that any of the witnesses were present at that sale or able to say why the four hundred and sixty-eight parcels were not then put up or sought to be sold. The evidence does show that at later dates the property was offered, but not taken ; that purchasers had grown cold, fallen off in spirit if not in numbers. The act of 1875, reducing the interest, had an adverse influence. In 1878 about thirty thousand parcels of land were in arrear in respect to taxes, water-rates and other liens. From a sense of depression, thus, and perhaps otherwise, induced, witnesses are of opinion that the land yet chargeable with arrears as to this improvement could not have been sold. This view, as a defense, does not appear to have been accepted by the learned judge at special term. The sales should have been made at the earliest time possible, consistent with reasonable diligence, to meet this award, and before other complications set in. Here was default, negligence. If the money could not be thus raised recourse should have been had to other sources of supply.

But the city did sell seven hundred and eighty-seven parcels of the property, and from those sales, and from voluntary payments, received $283,971.53. It is difficult to reconcile that actual experience with the theory that the property was to be considered as practically confiscated. But the money was paid out or applied, other awards paid in full, a signal departure from the equitable pro rata mode of distribution. It is said that that was in obedience to a judicial direction. Wé concur in the views expressed in the opinion of Judge McCub on this subject. Nor is it easy to see how a mere order, if made at special term, on an application, to which these plaintiffs were not parties, could be binding on them, and work out a forfeiture of their claim. So far as the comptroller was concerned it would relieve him from personal aspersion, but that is its only significance. A portion of the money should have been paid to these plaintiffs, and herein the defendants are chargeable with negligence.

The plaintiffs’ property has been condemned, taken for public use, and, thus far, without compensation. That fact would offend all well-conceived notions ns to the rights of property as guaranteed by the constitution. But such was not the intent of the legislature. The rule that private property shall not be taken without compensation, immediate or well provided for and assured, was respected in the statutes to which we have referred. The evil consequence must be referred to the management and negligence of the defendant. Within a series of well accepted cases the judicial remedy remained, and I am of opinion that the judgment should be affirmed, with costs.

Reynolds, J., concurred.

Judgment accordingly.  