
    THOMAS A. DAVIES, Plaintiff and Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendants and Respondents.
    Landlord and tenant.—Municipal corporations, when chargeable WITH RENT OP PREMISES.
    The liability of a tenant holding over his term for a specified rent, under the Revised Statutes, is based upon, the fact that the tenant took possession originally under a lease legally made.
    The resolution of the board of supervisors is not sufficient to authorize a lease to be made to the mayor, aldermen, and commonalty of the city of New York. This can only be done by a resolution of its legislative body, namely, the common council (People v. Stout, 23 Barb. 338; Baker v. Mayor, 9 Abb. Pr. 82); and for a period not exceeding five years (Charter, § 18).
    The board of supervisors cannot legislate in behalf of the city. Persons dealing with the agents of a municipal corporation must learn the nature and extent of such agents’ authority (Hodges v. Buffalo, 2 Denio, 110).
    
      Before Sedgwick and Speir, JJ.
    
      Decided November 3, 1879.
    The recorder has no authority, by his own independent action, to impose any liability upon the city (Supervisors of Richmond County v. Ellis, 59 N. Y. 620), and his act, in continuing in possession of the premises beyond the time for which rent was paid, was unauthorized, and no claim against the county or city of ITew York can be predicated thereon.
    Appeal from order directing verdict for the defendant, exceptions to be heard in the first instance, at general term.
    The facts in the case appear in the opinion of the court.
    
      Edmund Coffin, Jr., attorney, and of counsel, for plaintiff, urged:
    I. If an original lease was legally made in 1872, by which the corporation, now known as the mayor, aldermen, &c., was made liable for rent for the plaintiff’s premises, the liability continued under the Revised Statutes relative to tenants holding over (Witt v. Mayor, &c., 5 Robt. 248; 6 Id. 441; Schuyler v. Smith, 51 N. Y. 309; Marquart v. La Farge, 5 Duer, 559; Taggart v. Roosevelt, 8 How. Pr. 141.) If the original letting was by parol, the obligation for rent while holding over continued in same manner, and the allegation of a lease in writing is an immaterial variance (Thomas v. Nelson, 69 N. Y. 118; Dorr v. Barney, 12 Hun, 259.) If the obligation to pay rent was originally duly contracted by written lease or by parol letting on behalf of the board of supervisors, the obligation was continued to the “mayor, aldermen and commonalty,” and they are properly sued for this holding over since 1874 (Laws 1874, p. 360, c. 304; Schenck v. Mayor, &c., 67 N. Y. 44.)
    II. The recorder is, and was in 1872, an officer both of the city corporation, and of the county corporation, and either of these municipalities could legally and properly, in that year, have made a lease for his chambers for official business. The office of recorder is recognized in every charter this city has ever had, from the Dongan charter, section 6, to that of 3870, section 116. By chapter 488 of the Laws of 1847, in section 4, it was provided that the salary of the recorder should be “fixed” by the “board of supervisors of the city and county.” In the Code of 1848, section 9, his court is not recognized. In that of 1849, section 9, subdivision 14, seems to embrace it; and section 28 seems to throw upon the supervisors the duty and obligation of providing his necessary rooms for transaction of court business ; but many duties of the recorder, requiring chamber work, outside of a court, as such, remained. By Laws of 1852, p. 409, c. 275, it is provided that “the board of supervisors of the city of New York” may increase his salary, and by Laws of 1855, c. 575, the same provision is re-enacted, using the same expression as to the board being that of the city and not of the county. In none of this legislation does there appear to be any express enactment as to the source of payment of this salary. In 3869 the supervisors made the salary of the recorder equal to that of a justice of this court. Their action was approved by the legislature, as follows (1 Laws 1872, p. 908): “ § 2. The resolution of the board of supervisors of the county of New York, adopted December 27, 1869, and approved by the mayor on December 28, 1869, respecting the salary of the recorder and city judge, by the terms of which it was made equal to that of the judges of the superior and common pleas courts of the city and county of New York, is hereby legalized. ...” “§ 3. No other compensation shall be allowed to the recorder or city judge for holding any other court, or in dispossession or other judicial proceedings appertain; ing to their office, but this shall not prevent the board of supervisors from providing chambers for such judges. . . ” Immediately after the passage of this act of 1872, the supervisors passed their resolution, and the recorder entered into the occupation of the plaintiffs premises, and continued to use them for his official chamber business, until after May 1, 1877. We have then, in this case, an officer required by law to perform duties under the city charter, which implies that the city provide a place for him to perform the duties in, and naturally makes the expense a city charge. This is the precise doctrine laid down in Witt v. Mayor, by this court, where the rooms were hired for the use of the street commissioner, who was an officer of the city. We have, in addition, an express provision of the legislature, authorizing the providing of chambers for the recorder, leaving the designation of those rooms to the provision of the supervisors, but not specifying directly that the board of supervisors must hire the same, nor in any way making the cost of these chambers a county charge. The plaintiff claims that the original rent of these premises was a city charge, authorized by law to be contracted by resolution of the board of supervisors.
    III. The recorder entered into and used these premises under a valid contract, which bound either the city corporation or the county corporation to pay rent. Whichever was the contracting party, the defendant, since 1874, is estopped from denying the obligation, and is the proper party defendant under the chapter 304 of that year. The resolution of the board of supervisors, in 1872, authorized the entry and occupation by the recorder at the municipal expense. The evidence is clear that the auditor had before him, in 1876, a lease duly executed by somebody. This lease so referred to by the auditor in 1876, the city does not produce on demand. They are therefore estopped to deny its due execution. All this vexatious distinction between the dual' governments is done away with by the act of 1874. There can be no question but that it is the mayor, aldermen and commonalty who were holding over, and liable to pay on that account, whether they held over under a lease made in the name of the city corporation or of the county corporation, or on a lease made by parol in the name of neither. The fact, that the complaint alleges a written lease in the name of the defendant in 1872, is an immaterial variance from any one of the three hypotheses (Thomas v. Nelson, 69 N. Y. 118). The corporation relies upon the decision of this court in Farmers’ Loan and Trust Co. v. Mayor (4 Bosw. 80). In that case the mayor and .the comptroller, without any ordinance of the common council or of the board of supervisors, or any legislative enactment, had undertaken to bind the city corporation by a lease of a pier for three years for the purpose of removing offal. After the use of the pier had continued for nearly two years, the common council, by due ordinance, directed that a public pier be set apart for the purpose. The plaintiff was paid the rent up to May 1 after the passage of this ordinance, and the action was to recover the rent under the contract of lease for the remaining year of the term. This court held that the city could not be made liable on an executory contract of lease for that purpose made by any other authority than an ordinance of the common council. The case is clearly distinguishable from the present one. This original hiring was made by due authority of the board, authorized by act of legislature. The entry and occupation of the recorder was by right, and legal. The claim is for holding over, which is a quasi trespass (Schuyler v. Smith, 51 N. Y. 309).
    IV. The ordinance passed in 1876 does not amount to any defense. In the first place, the ordinance was conditional to a certain extent upon the provision which the commissioner of public works was to make, and which he did not make; and, in the^next place, the ordinance was not followed by vacation of the premises. The case is on all fours, in this respect, with Witt v. Mayor (supra). This case was twice argued and carefully considered (Schuyler v. Smith, 51 N. Y. 316), and is decisive of the case at bar.
    
      William C. Whitney and D. J. Dean, of counsel, for defendant, urged:
    I. The resolution proven on the part of the defendant is insufficient to authorize the alleged lease. The resolution purports to be a resolution adopted by the board of supervisors, acting in behalf of the county of New York. The alleged lease was a lease made by the mayor, aldermen and commonalty, which was at the time, May, 1872, a corporation independent and distinct from the county. A lease on behalf of the city can be authorized only by a resolution of its legislative body, to wit: the common council. The city is distinct from the county ; that the board of supervisors cannot legislate in behalf of the city, is established by abundant authority (People v. Edmonds, 15 Barb. 529; Halstead v. Mayor, 3 N. Y. 430; Baker v. Mayor, 9 Abb. Pr. 82; White v. Mayor, 2 N. Y. Leg. Obs. 26).
    II. Conceding that the resolution was sufficient to authorize a hiring of the premises in behalf of the county, and that the city has become liable for the debts of the county, the resolution limits the hiring to a term of one year from May 1, 1872, and does not authorize the occupation of the premises named by the recorder beyond that time. The recorder had no power, by his unauthorized act, to impose liability upon. the city. It is well settled that no liability can be incurred by the officials of the corporation, payable from the public treasury, except in accordance with the limitations of law ; and the legislature has been strict and precise in defining the conditions upon which the indebtedness against the corporation can be established. The power to lease real estate for corporate purposes is necessarily inherent in the corporation, to be exercised through the common council, and is limited by section 18 of the charter, providing that the common council should have no power to take a lease of real estate for a period exceeding five years. But no authority is anywhere given to any officer of either the city or county to incur indebtedness for rent of real estate, without the assent of the legislative body of the corporation. As to the period of occupancy of the premises in question by the recorder, subsequently to May 1,1873, the defendants contend that such occupation was not authorized by any resolution either of the supervisors or of the common council, and such holding over was therefore an individual act of the recorder, unauthorized by law, for which he only, and not the corporation, is responsible. The case of Farmers’ Loan and Trust Company v. Mayor (8 Bosw. 80), is analogous to the case at bar. The judgment in that case was based upon the well established principle that a municipal corporation is not bound by the unauthorized act of its official, which is illustrated in the following cases: McDonald v. Mayor, 4 Super. Ct. 177; S. C., 68 N. Y. 23; Burns v. Mayor, 5 Id. 371; Brady v. Mayor, 20 Id. 312; S. C., 2 Bosw. 173; Donovan v. Mayor, 33 N. Y. 291; Hodges v. Buffalo, 2 Denio, 112; Appleby v. Mayor, 15 How. Pr. 428; Supervisors v. Bates, 17 N. Y. 242; Smith v. Mayor, 10 Id. 538; Ellis v. Mayor, 1 Daly, 102; Bonesteel v. Mayor, 22 N. Y. 162; Dillon on Munic. Corp. §§ 272-381. Even in a case where the board" of supervisors had audited an account presented to them, and the money directed to be paid by such audit had been paid to the claimant thereof, and it appeared that the claim so audited was not a legal county charge, it was held-that the payment of the money by the county treasurer, as directed by the board of supervisors, was an unauthorized act of the agent of the county, and did not bind the county ; and that an action would lie to recover back the money from the recipient thereof (Supervisors of Richmond v. Ellis, 59 N. Y. 620). It therefore follows that neither the county of New York, nor the city of New York, could be bound by the unauthorized act of the recorder, and that no claim against them can be predicated upon such act.
    III. The act of the recorder in continuing in possession of the premises named, was not only unauthorized by any resolution of the common council, but was in contravention of a specific resolution of the common council, assigning to him other premises for his chambers. When the corporation, by the resolution of the common council designated another place for the chambers of the recorder, the corporation had done all that it was called upon to do through its legislative body, in order to provide the accommodations required for the recorder’s business. The resolution repels any presumption of assent on the part of the corporation to the continued occupation of the plaintiff’s premises, by the recorder, and also repels any implication of authority existing in the recorder to hold over. That the premises named in the resolution of the common council were not fitted for the occupation of the recorder until June is no legal justification to him in continuing to occupy the plaintiff’s premises. It was his business to vacate the plaintiff’s premises, and use the premises assigned to him by the common council as well as he could.
   By the Court.—Speir, J.

The plaintiff claims to recover from the defendants for the use and ©occupation of the premises in question for the four quarters of the year, from November 1, 1876 to November 1, 1877, as a tenant holding over after the expiration of a lease; that the defendants were made liable for the rent of the premises, and that the liability continued under the Revised Statutes relative to tenants holding over.

As the answer puts in issue by a positive denial, the lease claimed to have been executed by them, the first question presented on the threshold of the case is, was any such lease executed ? The plaintiff, to prove the lease, gave evidence that he was the owner of the premises for a term of years ; that he received from his authorized agent a lease of the premises, executed by the mayor in behalf of the city, hiring them for one year from May 1, 1872, at $2,000 a year. The authority for executing the lease consisted of a 'resolution passed by the board of supervisors, May 13, 1872. At that time a lease on behalf of the city could only be authorized by a resolution of the common council, its legislative body. The board of supervisors could act only in behalf of the county of ¡New York, and could not legislate in behalf of the city, which is a corporation independent and distinct from the county (People v. Stout, 23 Barb. 338; Baker v. Mayor, &c., 9 Abb. Pr. 82).

It will not be claimed by the plaintiff’s counsel that any liability is incurred by the defendants under the Revised Statutes, by holding over, unless the tenant took possession under a lease legally made, and continued in possession thereunder by permission of the defendant, without notice. The lease was not lawfully executed by any one having authority. Conceding that the resolution was sufficient to authorize a hiring of the premises in behalf of the county, and that the city has become liable for the debts of the county, the authority, by the resolution, limits the hiring to a term of one year from May, 1872, and does not authorize the recorder to occupy the premises beyond that time. The recorder has no authority, by his own independent act, to impose liability upon the city (Board of Supervisors of Richmond County v. Ellis, 59 N. Y. 620). The legislature has distinctly defined the conditions upon which the indebtedness against the corporation can be established. Again, the power to lease real estate for corporate purposes is limited by the 18th section of the charter, and can be exercised only through the common council, and they have no power to lease real estate for a period exceeding five years.

The main reliance of the plaintiff’s counsel is upon the proposition that those dealing with the agents of a municipal corporation have no right to presume that they are not acting within the line of their duty, and need not ascertain the nature and source of their authority. Hence the assumption that the recorder, having acquired possession of the premises for a year, either by a written or verbal lease from the board of supervisors, the obligation was continued to the mayor, aldermen, and commonalty, and they therefore became liable for this holding over. The first answer to this is, that there was no authority for the original possession, and the statute relating to the doctrine óf holding over has no application. The second answer is, that it is fundamental that those dealing with the agents of a municipal corporation must take care to learn the nature and extent of their authority (Hodges v. Buffalo, 2 Denio, 110).

There is no presumption of assent on the part of the corporation, in the resolution relied upon, that the occupation of the plaintiff’s premises was tobe continued, nor does it imply any authority existing in the recorder to hold over.

The plaintiff’s exceptions are overruled, and judgment for defendants should be entered on the verdict, with costs.

Sedgwick, J., concurred.  