
    The Mayor, Etc., of New York, Appl’ts, v. The Tenth National Bank, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    New York city and county—Advances made to the various departments—Validity and eeeect oe laws 1872, chapter 9.
    Between December 1, 1871, and May 31, 1873, the plaintiff deposited with the defendant, from time to time, large sums of money, on which the defendant agreed to pay interest at the rate of four per cent upon daily balances. The plaintiff claimed that the amount due on this account was $350,000, but the trial court found the amount to be $66,301.36. As a counter-claim the defendant alleged that between,April 29, 1871, and September 2, 1872, it had advanced to the commissioners of the new county court house of New York, appointed by the mayor, pursuant to section 2, of chapter 382 of Laws of 1870, from time to time as requested by the commissioners, certain large sums of money amounting on February 1, 1872, to $242,579.97, on which it claimed interest from that date. When these advances were made to the commissioners they had no authority to borrow money on the credit of the county, or to bind the county for such advances; but by section 2, chapter 9 of Laws of 1872, the comptroller of the city was authorized and directed, out of the proceeds of the bonds authorized to be issued by that act, to pay back to the “ various banks, insurance and trust companies of the city of New York, all moneys which have been advanced by said banks, insurance and trust companies, or any of them prior to the 31st day of December; 1871, to or for the use of any of the departments or commissions of the city or county of New York.” These advances were made in good faith by the defendant, and all the moneys so advanced were used for the county except $45,000 diverted by James H. Ingersoll, Wm. M. Tweed and Richard B. Connolly, by a fraudulent conspiracy between them, who were also directors of the bank defendant. There was no proof‘that the other directors of the bank had any notice or knowledge of that conspiracy, or that either of the said three conspiring directors were present at any meeting when any action was taken in reference to the advances. The sole agent and representative of the bank was Wm. M. Bliss, the president, and he was entirely innocent of any wrong, and used due diligence inquiring as to the legality and propriety of making the advances. Meld, 1. That the advances so made by the defendant were embraced within the language of section 2, chapter 9 of Laws 1872. 2. That it was within the power of the legislature to have authorized, in the first place, the advances to be made by the defendant to the commissioners, and the county would have been bound to repay the advances, even if the conspirators had misapplied all- the money. 3. That what the legislature could originally have authorized, it could ratify and confirm, and may compel a municipal corporation to pay a debt which has a meritorious basis. 4. That the commissioners appointed by the mayor were legally constituted county commissioners, and were engaged in disbursing county moneys, and discharging functions devolved upon them as county officials. It matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. 5. That the “ new court house ” is a county building, built for county purposes, at the county expense, upon county real estate actually purchased of the city, and belongs to the county. 6. That the fact that the three conspirators were among the directors of_ the bank, did not deprive its innocent directors, stockholders and creditors of all claim to just consideration, and the knowledge that those directors had of the fraud, could not be attributed to the bank.
    The complaint alleges that the defendant was duly designated as one of the depositories of the moneys of the city and county óf New York, and that between the 1st day of December, 1871, and the 31st day of May, 1873, large sums of such moneys were deposited with it, upon which it agreed to allow interest at the rate of four per cent upon' daily balances, and that there was due it on account of such interest the sum of $250,000, for which judgment is demanded.
    The defendant in its answer, besides making various material denials, sets up as a counter-claim that between the 29th day of April, 1871, and the 2d day of September, 1872, it had advanced to the commissioners of the new county court house of New York, for the use of such commissioners, the large sums of money specified; that by chapters 9 and 29 of the Laws of 1872 the comptroller of the city of New York, who was then the fiscal officer of the couDty of New York, was authorized and required to pay back to the defendant the moneys so advanced; that such commissioners were commissioners of the county of New York, and by chapter 304 of the Laws of 1874 the debt to it for the moneys so advanced was made a charge against and a liability of the city; that there is due to it for the moneys so advanced the sum of $242,579.97, with interest from February 1, 1872, for which judgment is demanded against the plaintiff.
    The plaintiff replied to the counter-claim, alleging various defenses thereto.
    The issues thus joined were brought to trial at a circuit before a judge presiding without a jury. The judge found that the defendant was indebted to the plaintiff on account of the interest in the sum of $66,301.36, and that there was due to the defendant upon its counter-claim, after deducting the debt for the interest, the sum of $358,849.23, for which sum he ordered judgment in favor of the defendant. Other facts, so far as material, appear in the opinion.
    
      John H. Strahan and Simon Sterne, for app’lts; Thomas Allison, for resp’t.
    
      
       Afflrming 16 N. Y. State Rep., 273.
    
   Earl, J.

The learned and exhaustive argument by the counsel for the city has failed to convince us that the judgment appealed from is erroneous. .

The construction of the New York court house seems to have been inaugurated by an appropriation in the act chapter 509 of the Laws of 1860 oí $100,000 “for the purpose of erecting suitable court rooms for the accommodation of the several courts of the county." By the act. chapter 161 of the Laws of 1861, the board of supervisors of the county of New York was authorized and empowered to acquire and take for the purposes of building a court house therein such land in the city and county of New York as they might deem necessary for the purpose; and provision was made for taking and acquiring the land by condemnation proceedings, and for raising money on the credit of the county to pay for the same.

By chapter 24 of the same year and chapters 167 of 1862, 108 of 1863, 242 of 1864, 605 of 1865, 837 of 1866, 806 of 1867, 854 of 1868 and 875 of 1869 the board of supervisors was authorized to raise money for the construction and completion of the court house. Under the act of 1861, land was acquired from the city upon which to erect the court house, ana during' all the years ' named the construction thereof was carried on by the board of supervisors through agencies employed by it. The bills for work and materials employed in the construction were audited by the board of supervisors like other county bills and were paid by the comptroller of the city.

Then the system for the construction of the court house was changed by section 11 of the act, chapter 383 of the Laws of 1870, which authorized and empowered the mayor of the city to appoint four commissioners for the final completion of the “new county courthouse,” and provided that upon the appointment of the commissioners all power o'f the board of supervisors over the erection of the court house should cease; that the commissioners should have the power to expend and should complete the court house for a sum not exceeding $600,000, which amount the comptroller was authorized and directed to raise on the stock of the county to be designated the “New York county court house stock, No. 4;” that the money so raised should be paid by the comptroller on vouchers approved by the commissioners. Under that act on the 1st day of December, 1870, the mayor appointed James H. Ingersoll, Michael Norton, Thomas Ooonan and John J. Welsh, the commissioners who continued in office and served as such until sometime after 1873.

By section 7 of the act, chapter 583 of the Laws of 1871, the sum of $750,000 was appropriated for the completion of the “ New York county court house,” to be expended under the direction and supervision of the court house commissioners;-and the comptroller was commanded on the requisition of the commissioners to pay over to their credit such sum or sums as they might from time to time deem necessary for such purpose; and the comptroller was authorized and directed to raise the amount appropriated on the stock of the county of New York. In the same act it was provided that no bonds or stocks of the city or county of New York, except those authorized to be issued by the direction of the commissioners of the sinkng fund and revenue bonds issued in anticipation of the taxes of the current year, should be thereafter issued except by the concurrence and authority of all the persons composing the board of apportionment consisting of the mayor, comptroller, the commissioner of public works and the president of the department of parks who should be present at a meeting called by the chairman of the board for that purpose on three days’ notice.

Uroití this review of the statutes it is clear that the court house was a county building, built for county purposes, at the county expense, upon county real estate actually purchased of the city, and that when built it belonged to the county. The commissioners appointed to build it were county commissioners engaged in disbursing county moneys and discharging functions devolved upon them as county officials or agents.

It matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. It could he^ve named them in some act or could have devolved their appointment upon the board of supervisors or the sheriff or some other local officer. Their character as county commissioners depended, not upon the source of their appointment, but upon the nature of their duties and powers, and of the work they were required to perform. That they were county commissioners has been several times decided by the courts in New York in unreported decisions, and the following cases tend strongly to the same conclusion : People v. Stout, 23 Barb., 349; Wood v. The Mayor, 7 Hun, 164; People ex rel. Ryan v. The Civil Service Board, 41 id., 287; Erghott v. The Mayor, 96 N. Y., 261; Walsh v. The Mayor, 107 id,, 220; 11 N. Y. State Rep., 401.

It is conceded, and was so found by the trial judge, that the commissioners had no power or authority to borrow any money on behalf or on the credit of the county, and that they did not and could not bind the county for the advances made to them by the defendant; and if there had been no further legislation than that already referred to, the city succeeding to the liabilities of the county would have been under no legal liability to the defendant for the, claim made by it.

It is important before going further to inquire whether the defendant made these advances in good faith, and to answer this inquiry a few facts must first be stated. After the cormnissioners were appointed Ingersoll was chosen their treasurer, and he was such from the date of his appointment until some time subsequent to December 31, 1872. The bank received formal written notice of his appointment as treasurer, and that his would be the only signature in dealings of the commissioners with the- bank. In the month of April, 1871, Ingersoll, as treasurer, applied to the defendant to make advances to and for the use of the commissioners, and to act as a bank of deposit for them, and it agreed to do so. Before, however, it made such “agreement its president called upon both the comptroller and the mayor of the city, and they each informed him that it was proper, safe and right for him to take the account of the commissioners and make the advances. Thereafter, before the 2d day of September, 1871, the defendant advanced and paid to and for the use of the commissioners, upon checks drawn upon it by Ingersoll, as treasurer, and indorsed by the payees therein • named, the ‘ sum of $112,579.97. The only money deposited to the credit of the commissioners was the sum of $200,000, deposited by the comptroller on the 7th day of July, 1871, in compliance with a requisition made by the commissioners upon him and out of an appropriation authorized by the board of apportionment. All the checks were drawn to pay bills and expenses ostensibly made by the commissioners in the construction of the court house, and all the money drawn upon the checks was actually applied to pay such bills and expenses, except the sum of $15,000; and that was fraudulently misappropriated under the following circumstances: A fraudulent conspiracy had been entered into by Ingersoll, William M. Tweed, Richard B. Connolly, then the comptroller, and others by which certain of the bills were to be raised forty per cent above their true amount, and this excess was to be divided between the conspirators, for their own private use.

This conspiracy was unknown to the other commissioners, and there is no proof that it was known to the mayor of the city. All the dealings of the bank with Ingersoll as treasurer were conducted through its president, William M. Bliss, and he was the sole agent and representative of the bank. There was nothing in the form of the checks drawn by Ingersoll to give him any notice of the conspiracy or fraud, and he had no knowledge whatever of the misappropriation of any of the money drawn. There was no proof whatever that he acted in bad faith in making the advances upon the checks. He ought to have known that the commissioners had no authority to take these advances upon the credit of the county. But the knowledge which the law imputes to him of their want of authority has no bearing whatever upon the question of his good faith. He used due diligence. He consulted the comptroller and the mayor, who was also a lawyer, and was assured that the arrangement which the commissioners proposed to make with him was right and proper ; and it was not an unusual arrangement, as the city banks were much in the custom of advancing moneys to the various departments and commissioners of the city in anticipation of appropriations to be made.

But it is claimed that knowledge of the conspiracy and’ fraud must be imputed to the bank, because three of the conspirators, Ingersoll, Tweed and Connolly, were directors of the bank, and hence that thé bank could not claim the benefit of good faith. But 'none of these directors represented the bank in these transactions, and in no way acted for the bank in them. Connolly was consulted as comptroller and Ingersoll acted for the commissioners. Neither of them were present at any meeting of the directors when any action was taken in reference to the advances. The sole agent and representative of the bank was Bliss, its president, and he was entirely innocent of any wrong. The knowledge these conspirators had while engaged in their fraud for their own benefit could not, therefore, be attributed to the bank ; and to this effect are all the decisions. Bank of United States v. Davis, 2 Hill, 451; President, etc., v. Cornen, 37 N. Y., 320 ; Holden v. N. Y. and Erie Bank, 72 id., 291; Atlantic Bank v. Savery, 82 id., 291; Cragie v. Hadley, 99 id., 131; Custer v. Tompkins County Bank, 9 Penn. St., 27; President, etc., v. Lewis, 22 Pick., 21; Farmers’ and Citizens’ Bank v. Payne, 25 Conn., 444.

The question now remains whether these advances made by the defendant were subsequently ratified by competent legislative action. Before September, 1871, the appropriations made for the various city departments and commissions had been exhausted, and in that month, and October and November of the same years, certain banks, trust companies and insurance companies advanced to the comptroller of the city, or the departments and commissions, large sums of money for the purpose of paying the expenditures of such departments and commissions during those months and the month of December, and they took as security for the moneys so advanced assignments of the claims, to'pay which the moneys were borrowed. Those moneys were advanced, without authority of law, to meet an emergency, with the expectation that subsequent legislative action would ratify them.

On the 30th day of January, 1872, in section 2 of the act, chapter 9 of the Laws of that year, it was provided that the comptroller, out of the proceeds of bonds authorized to be issued by that act, should be authorized and required to pay back to the “various banks, insurance and trust companies of the city of New York all moneys which have been advanced by said banks, insurance and trust companies or any of them prior to . the 31st day of December, 1871, to or for the use of any of the departments or commissions of the city or county of New York.”

These advances made by the defendant are plainly embraced within the language of this act. They were advances made by a city bank to and for the use of county commissioners. The claim for these advances was, before the passage of the act, as well known to the comptroller as the claims of the other corporations which had advanced moneys. We may assume that the act was drawn under the supervision, or at the instigation, of the comptroller, the financial officer of the city and county, and if it had not been intended to provide for these advances, the language would have been such as to exclude them. It appears, too, that the court house commissioners were the only county commissioners, strictly speaking, to which the act could apply, and there was no other claim for advances made to the county presented under the act. It is true that these advances were illegal, and so were all the other advances referred to.

These, advances were made in good faith, and all the moneys advanced were used for the county except the sum of $45,000, fraudulently diverted by the conspirators. The fact that the conspirators were among the directors of the bank did not deprive its innocent directors, stockholders and creditors of all claim to just consideration, and did not make it an outlaw without rights, a caput lupinum, entitled to no protection.

While the legislature may not always be held to have had full knowledge of all the facts and consequences involved in its action, its ignorance cannot be presumed for the purpose of nullifying the plain meaning of its language. But we have no right to assume that if the legislature had known the precise facts as they now appeal in this record it would have refused to ratify a claim for moneys thus advanced in accordance with a common practice, in good faith, a small portion of which only was misappropriated by the trusted agents of the county. As the plain language embraces these advances they should not, .by construction, be taken out of the statute except we can clearly perceive a legislative intention that they should not be embraced; and that upon a consideration of all the facts we are unable to perceive.

It is further claimed that the legislature was not competent to ratify these advances and make them a binding obligation on the county. It is said that it could not originally have authorized advances to be made to the conspirators for fraudulent division among themselves, and that hence it could not ratify such advances. This may be conceded. But here, these advances were made in good faith, not to be divided among the conspirators but to- and for the use of the county. This the legislature could have authorized, and the county would have been bound, although the conspirators had misappropriated all the money, and what it could originally have authorized it could ratify and confirm. Municipal corporations are creatures of the state, and exist and act in subordination to its sovereign power. The legislature may determine what moneys they may raise and expend, and what taxation for municipal purposes may be imposed, and it certainly does not exceed its constitutional authority when it compels a municipal corporation to pay a debt which has some meritorious basis to rest on. The provisions of this act are sanctioned by the principles of the following decisions: Town of Guilford v. Supervisors, 13 N. Y., 143; Brewster v. City of Syracuse, 19 id., 116; Darlington v. Mayor, 31 id., 164; Brown v. Mayor, 63 id., 239.

We, therefore, conclude that judgment allowing defendants’ counter-claim was right and should be affirmed.

All concur.  