
    John Napier, Respondent, v. City of Brooklyn, Appellant.
    
      Park commiBsigner of Brooklyn — conversion by, of property on land condemned — liability of the city of Brooklyn for his act.
    
    The fact that the park commissioner of the city of Brooklyn, who, under chapter 758 of the Laws of 1894, was head of the department of parks of the county of Kings, refused to allow a tenant of land acquired by the department to remove therefrom buildings erected by him, as he was entitled to do under his lease, and that such commissioner, through his subordinates, took and withheld possession of the buildings and certain personal property therein, did not create a cause of action for conversion against the county of Kings or against the city of Brooklyn with which the county of Kings was consolidated by chapter 954 of the Laws of 1895.
    
      'The refusal in 1896 of the park commissioner of the consolidated corporation to surrender the property upon demand, coupled with his statement that it belonged to the city of Brooklyn for the park department, is such an assumption of dominion and control over it by him on behalf of the city as constitutes an actionable conversion by the city as of that time.
    'The city is not relieved from liability for the act of the park commissioner by section 28 of title 22 of the charter of the city of Brooklyn (Laws of 1888, chap. 583), as the application of that section is, by its terms, limited to acts done in pursuance of the charter, while the act in question was done by virtue of the legislation concerning county parks under which the land in question was acquired.
    ■Chapter 947 of the Laws of 1895, amending section 2 of title 16 of the charter by omitting therefrom the limitation making the department of parks subject to the power of the common council in respect thereto, did not deprive the department of parks of its character as an instrument for the performance of a corporate function of the city.
    Appeal by the defendant, the City of Brooklyn, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the ■office of the clerk of the county of Kings on the 28th day of April, 1898, upon the verdict of a jury, and also from an order entered in •said clerk’s office on the 25th day of April, 1898, denying the •defendant’s motion for a new trial made upon the minutes.
    
      William J. Carr, for the appellant.
    
      A. G. Cropsey, for the respondent.
   Willard Bartlett, J.:

In 1894 the Legislature passed an act creating a department of parks in any county of this State containing a city with a population in excess of 800,000 and in which the boundaries of the city were not coterminous with those of the county. (Laws of 1894, •"chap. 758.) This statute, although general in its terms, could apply ■only to the county of Kings. It provided in effect that the department of parks of the city of Brooklyn should be the department of •parks of the county, and should have and possess all the powers and •duties then held and exercised by said department in relation to any park, parkway, road, highway, boulevard or concourse in said county. (See § 5 of statute cited.) In 1895, pursuant to the provisions of •-this statute, a piece of land near Fort Hamilton was acquired for park purposes from the Dyker Meadow Improvement Company. At this time Frank Squire was the park commissioner of the city of Brooklyn, and as such was at the head of the department of parks of Kings county. For some years previous the' plaintiff had been a yearly tenant in occupation of a portion of the land thus acquired, and, as sufficiently appears from the proof, had received permission from the Dyker Meadow Improvement Company to erect a pavilion and bathhouses thereon, with liberty to remove the same at any time when the owner should effect a sale of the land. Upon the sale and conveyance to the county in 1895 the plaintiff sought to remove the structures in accordance with the terms of his contract with the Dyker Meadow Improvement Company, hut Mr. Squire refused to allow him to do so, and through his subordinates in the department of parks took possession of the buildings, together with a considerable quantity of personal property therein contained, and withheld possession thereof from the plaintiff during his term of office.

By virtue of the enactment of chapter 954 of the Laws of 1895, the county of Kings and the city of Brooklyn were consolidated into one body corporate and politic by the name of the city of Brooklyn from and after January 1, 1896. All the rights, privileges, franchises, property, interests, claims and demands of the county of Kings became vested in the city of Brooklyn from and after that date, and the local administration and government of the city of Brooklyn and county of Kings were thereafter vested in and performed by a single corporation bearing the name of the city.

After this consolidation, and in March, 1896, the plaintiff made a demand upon Mr. Timothy L. Woodruff, who was then park commissioner of the city of Brooklyn, for the property taken from him at Dyker meadow, as already mentioned; but the commissioner refused to give it up, stating that it was purchased from the Dyker Meadow Improvement Company and belonged to the city of Brooklyn for the park department.

Under the doctrine of Markey v. County of Queens (154 N. Y. 675) and the cases therein referred to, it seems quite clear that the county of Kings could not be held liable in a civil action for conversion by reason of the conduct of Commissioner Squire or his subordinates in taking possession of the plaintiff’s property. " While the act was unlawful, the remedy of the owner was against the individuals by whom the wrong was done, and not against the county.

Nor, as it seems to me, did the transfer of the property of the county' to the city, by virtue of the consolidation of the two governments, which went into effect at the beginning of 1896, confer upon the plaintiff any different or other right of action by' reason of the conversion than that which belonged to him prior to the consolidation. The plaintiff’s buildings and chattels had never become the property of the county, although taken from him hy persons assuming to act as county officers; and the city of Brooklyn acquired no better title to the property than belonged to the county.

Up to the time, therefore, of the demand upon Commissioner Woodruff, the plaintiff had no grievance against the city of Brooklyn or any officer thereof; and if the maintenance of the present action depended solely upon what had happened before that time, I do not see how this judgment could be upheld. When, however, the plaintiff asked Mr. Woodruff, the new park commissioner of the consolidated corporation, for the restoration of his property', and the commissioner declared that it rightfully belonged to the city of Brooklyn for the park department, and for that reason refused to return it, I think that he asserted in behalf of the city' a right of dominion and control over the property which constituted an actionable conversion thereof at that time.

For this conversion the city is liable, unless exempted by a provision in the charter presently to be considered. Municipal corporations proper “ are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties. ” (2 Dillon Mun. Corp. [4th ed.] § 966.) The action of Commissioner Woodruff in declining to comply with the plaiutff’s demand for a return of his property', whether rightful or wrongful, was done by him in the course of the performance of his duties as head of the department of parks of the city of Brooklyn. Under the charter of Brooklyn, as enacted in 1888, the department of parks was vested with the exclusive government, management and control of all the parks in the city, subject, however, to the powers of the common council in relation thereto. (Laws of 1888, chap. 583, tit. 16, § 2.) So long as this provision remained in force, it was clear that the management of the parks was a duty of the municipal corporation, and that, the department of parks being charged with that duty was an instrumentality executing a corporate function, and responsible for misconduct in so doing which resulted in injury to individuals. In 1895, however, the section above cited from the charter in relation to the power of the department of parks was amended so as to omit the limitation making the department subject to the powers of the common council (Laws of 1895, chap. 947); so that at the time of Commissioner Woodruff’s refusal to restore the plaintiff’s property,, the law provided, without any qualification, that the department of parks should have the exclusive government, management and control of all the parks, squares and public places in the city. The legislation in respect to the county parks and the consolidation of the city with the county towns, gave the commissioner like powers, over the lands which had been acquired for county park purposes; and it is suggested that these powers having been made exclusive of any control by the common council under the amendment of the charter adopted in 1895, the park department was no longer to be regarded as an instrument for the performance of a corporate function of the municipality. I do not think that such a sweeping effect should be given to the amendment. The charter still provided that the administrative power of the corporation known as the city of Brooklyn should be vested in the mayor, the heads of departments therein named, and such other officers as should, from time to time, be created by law or appointed by virtue of the charter itself, and it enumerated the department of parks as one of the departments through which such administrative power was to be exercised. The character of the duties of the park department was in nowise changed by the amendment. Under the charter the power to control and manage the parks was treated as a power to be exercised for the purposes of the municipal corporation, and not to promote a distinct public purpose of a different character, such as those considered in the cases of Maxmilian v. Mayor (62 N. Y. 160) and Ham v. Mayor (70 id. 459). When the city and county governments were consolidated, the maintenance of all the parks within the boundaries of the city became a public purpose in which the municipal corporation was directly interested ; and. I think that the duty of talcing care of all the parks, of both classes, was thereafter to be regarded as a duty of the city.

But it is argued that.the defendant is relieved from responsibility for the act of the park commissioner in retaining possession of the plaintiff’s property, after it was demanded in 1896, by the exemption clause of the charter, which provided that the city of Brooklyn shall not be liable in damages for any misfeasance or nonfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them, or any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any provision of this act.” (Laws of 1888, chap. 583, tit. 22, § 28.)

It will be observed that this exemption relates only to the wrongful or negligent performance of a duty imposed by the charter itself. Whatever Commissioner Woodruff did with reference to the plaintiff’s property was done in the exercise of duties imposed upon him, not at all by the charter of the city of Brooklyn, but by virtue of the legislation concerning the county parks which brought the acquisition of the Dyker meadow lands within the jurisdiction of the department of parks of the city of Brooklyn. Hence the exemption clause in the charter has no application to the facts of the case at bar, and the city remains liable under the general doctrine that the unauthorized acts of municipal officers are regarded as the acts of the corporation, provided the acts are performed by that branch of the municipal government which is invested with jurisdiction to act for the corporation upon the subject to which the particular act relates.” (City of Chicago v. Chicago & Western L. R. R. Co., 105 Ill. 73, 85.) In this case it is clear that the department of parks of the city of Brooklyn has converted the property of the plaintiff to the use of the city without any warrant or excuse. In my opinion, a fair construction of the law makes the city liable for this wrong.

I think that the judgment is right and should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  