
    Town of Hempstead, Respondent, v. Newbold T. Lawrence, Individually and as Executor of and Trustee under the Last Will and Testament of Newbold Lawrence, Deceased, and Others, Appellants, Impleaded with Carman Frost and Others, Defendants.
    Second Department,
    May 9, 1910.
    Town — corporate capacity to sue—suit to enjoin trespass on town . lands — authority from electors not necessary ■— power of town board to authorize action. ;
    A town is a municipal corporation and as such may sue in all courts in like case as a natural person. That is to say, where there is an existing liability at law, or an existing right which it may enforce, the method of its enforcement must be the same as if it were a natural person.
    A town suing to enjoin repeated trespasses upon lands owned by it is not exercising a purely public or governmental -function, but is asserting a private and property right.
    A town may maintain such action where previously authorized by resolution of the town board, and it is not essential as a condition precedent that the electors of the .town at a biennial or special meeting direct the prosecution and that funds be raised therefor. The sections of the Town Law authorizing such action by the electors are permissive, not mandatory.
    A town board has implied power to authorize the prosecution of such action, as the statute specifically states that the expenses lawfully incurred by any town officer in prosecuting an action brought by the town shall be a town charge in all cases where the officer is instructed to prosecute' by resolution of the town board.
    
      Appeal by the defendants, Newbold T. Lawrence, individually and as executor, etc., and others, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Nassau on the 15th day of February, 1910, denying the said' defendants’ motion to dismiss the action on the ground that it was commenced without authority.
    
      William M. K. Oloott [H. A. Monfort and J. Henry Work with him on the brief], for the appellants. •
    
      Edward E. Sprague [Ered Ingraham with him on the brief], ■ for the respondent. .. .
   Burr, J.:

This action was commenced in December, 1907. Its purpose was, among other things, to enjoin repeated trespasses by defendants or some of them upon property which plaintiff claimed to own in fee. Defendants appeared generally in the action and demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. An appeal was taken to. this court, and on June 18, 1909, the interlocutory judgment was. affirmed (133 App. Div. 933). Thereafter defendants moved to -dismiss the action “ as having been brought without any warrant ■ or authority given by the said town or the electors thereof.” The motion was based upon an affidavit to the effect that neither at any annual nor special meeting of the» electors of the said town had any resolution or order been adopted granting “any warrant or authority for the bringing and maintaining of this action, or in-any wise relating thereto.” - It was conceded, however, that prior to the commencement thereof the board of town officers as duly constituted under the Town Law had adopted a resolution which, after reciting;that certain persons, including the defendants- or some of them, “ made claim or assert to make claim ” to certain portions of the property described in the coin plaint herein and that said land belonged to the town, which had always claimed the ownership thereof, authorized and empowered the supervisor “to retain counsel in the matter and agree with such counsel on behalf of the town to take such action as may be deemed advisable to bring about a speedy determination of the question of title to said premises and the rights and interest of the town with respect thereto.” Thereafter this action was brought. The statute upon wiiich defendants base their contention is as follows : “ The electors of each town may, at their bienriial town meeting : * * * 3. Direct the prosecution or defense of all actions and proceedings in which their town is interested, and the raising of such sum therefor as they may deem necessary.” (Laws of 1890, chap. 569, § 22 [former § 24], as renumbered and amd. by Laws of 1897, chap. 481.) It is further provided that special town meetings may be held “ for the purpose of determining in regard to the prosecution or defense of actions, or the raising of money therefor.” (Id. § 23 [former § 25], as amd. by Laws of 1894, chap. 280, and renumbered by Laws of 1897, chap. 481.)

The question here is whether the adoption of such.a resolution by the town electors is a condition precedent to the right to institute and maintain an action in the name of the town involving the protection of its property rights, or whether the statute is simply permissive, and the action of the town meeting supervisory in character. To answer this correctly the statute must be read and construed in connection with other statutes relating to towns and the administration of town affairs. At the time when this action was commenced a town was one of the class of corporations known as a municipal corporation. (Gen. Corp. Law [Laws of 1890, chap. 563; Laws of 1892, chap. 687], §§ 2, 3, as amd. by Laws of 1895, chap. 672; Town Law [Laws of 1890, chap. 569], § 2; Gen. Municipal Law [Laws of 1892, chap. 685], § 1.) As- such it had the right to sue in all courts in like cases as natural persons. (State Const, art. 8, § 3.) That is, where there is an existing liability at law or an existing right which it may enforce, the method of its enforcement must be such as if it were a natural person. (Markey v. County of Queens, 154 N. Y. 675.) The protection of the property of a town from unlawful invasion and trespass is not a purely public and governmental function, but the maintenance of a private and property right. (Bridges v. Board of Suprs. of Sullivan County, 92 N. Y. 570.) As was said by Chief <7udge Huger in that case, a town is “ entitled to the same remedies for the protection of its rights of property as exist for the enforcement of similar rights in the case of individuals.” It may be said to be a power necessarily implied. While it is true that section 182 of the Town Law (supra) specified certain actions or special proceedings which may be brought, and certain liabilities for the enforcement of which a town (may be sued, this was not intended to and does not deal with the creation and existence of rights or liabilities on the part of a town, but at the most only with methods for the enforcement of those rights and liabilities there referred to.; (Acme Road Machinery Co. v. Town of Bridgewater, 185 N. Y. 1; Town of Pelham v. Shinn, 129 App. Div. 20.) The fact that an action of this character is not one there specified would not' deprive the town of the right to maintain-it. As a rule, the ■administrative affairs of a corporation are managed and controlled by its governing board, by whatever name it may be known. The town board is the governing board of the town. (Gen. Municipal Law, supra, § 1.) The words of the -statute above quoted are permissive in character and not mandatory, and there is neither clear intent of the Legislature nor public policy which requires that they should be given the latter construction. In such case “may” is not equivalent to “ must.” (Morse v. Press Publishing Co., 71 App. Div. 351; Gilmore v. City of Otica, 121 N. Y. 561.) ■ Considering, therefore; that the constitutional purpose was to assimilate actions by corporations to those by individuals; that the presumption of authority by an attorney to bring an action in which" he appears for the plaintiff exists; that this action relates to the protection of the private and property rights of the corporation; that in the case _of corporations other than municipal corporations the governing board has the right and authority to direct the institution and maintenance of actions relating to its property rights; that the plaintiff corporation has such a governing board; that such governing board has authorized the bringing of this action ; that the language of the statute referred to is permissive and not mandatory, and that full force and effect can be given to it by construing it as giving only a power of supervision to the town meeting-.over actions then pending or thereafter to be brought, I think that we should hold that the adoption of an affirmative resolution at an annual or special town, meeting is not a condition precedent to the bringing thereof, and that the -absence of such resolution is no evidence that this action was improperly brought.

It may be urged that while the General Municipal Law (supra) makes the town board the governing body of a' town, neither that nor any other statute expressly defines the powers and duties of such board. It is true that the statutes on the .subject are vague, indefi-' nite and somewhat confusing, but I think that implied authority to the town board for its. action may be found. The Town Law (supra, § 180) provides, among other things, that the following shall be deemed town charges': “ 7. The costs and expenses lawfully incurred by any town officer in prosecuting or defending any action or proceeding brought by or against the town or such officer for an official act done shall be a town charge in all eases where the officer is required by law to so prosecute or defend; or to do such act, or is instructed to so prosecute or defend, or do such act, by resolution duly adopted by the town board, or at a town meeting duly held.” Eliminating the portions of this section inapplicable to this situation it would read as follows : The costs and expenses lawfully incurred by any town officer in prosecuting * * * any actio® * * * brought by * * * the town * * * shall be a town charge in all cases where the officer is * * * instructed to so prosecute * ' * * by resolution duly adopted by the town board.” With reference, therefore, to an action which the town had the right to begin, the expenses incurred in connection therewith by a town officer acting under the instruction of the town, board to begin the same would be a town charge. It would be an anomaly to hold that the town board could make the town liable for the expenses of an action which the town board had no power to institute, and which was, therefore, unlawfully prosecuted. • Power as to the one necessarily involves power as to . the other. (Adee v. Arnow, 91 Hun, 329. See, also, Town of Delhi v. Graham, 3 Hun, 407; People ex rel. Coon v. Wood, 35 N. Y. St. Repr. 840; Boon v. City of Utica, 4 Misc. Rep. 583; Rockefeller v. Taylor, 69 App. Div. 176; People ex rel. McMillen v. Vanderpoel, 35 id. 73.) In several of these cases, although the question was not directly involved, there was a clear intimation in the opinions of the court that the town board possessed such power and authority. In this case the board authorized the supervisor, an officer of the town, to employ counsel and institute whatever action was necessary to protect the interests of the town. None of the cases cited by the appellants, which were decided in this State, holds to the contrary. Denton v. Jackson (2 Johns. Ch. 320) was an action brought by an individual of the town in behalf of himself and other residents of the town to determine the question whether undivided- patented lands .belonged to the town or to individual freeholders, or to the heir of the surviving patentee or those deriving title from the patentees or their associates. The bill was dismissed because .the plaintiffs as individuals had no title, and" the court held that individuals could not bring .actions involving town rights. The language of the court in that case, to the effect' that “ Without a resolution, recorded by the town clerk, I do not think there would be the requisite evidence of the will of a town to "commence a suit respecting its rights,” must be construed with reference to the question then before it. This is apparent from the succeeding sentence: “ It appears to be "altogether inadmissible, and destructive of order and peace, to admit private individuals, of their own mere motion, to cany on a suit in behalf of the town, respecting its common property, and without the knowledge and consent of the. town, duly declared.”' There was nothing in that case calling upon- the court to determine as to the power of town officials or of the town board to institute such a suit in behalf of the town.

Cornell v. Town of Guilford, (1 Den. 510) only held that even the electors of towns in a town meeting had no power to authorize commissioners of highways to bring an action in their own names, or in their name of office, for injuries to the public highways or bridges of the town; that such an action, if brought, must be brought in the name of the town, and that the action of a town meeting directing otherwise would be invalid.-

Town of Lyons v. Cole (3 T. & C. 431) was a case where the electors at a town meeting had instructed the supervisor to bring an action to restrain the defendants- from disposing of town bonds issued in aid of the construction of a railroad until the rights of the town Were protected; It would seem that the consent of the town to the issuing of the bonds was conditional upon receiving a guaranty that the road should run through or near the village of Lyons, and it was claimed that the bonds were delivered without securing such guaranty. Instead of bringing the action which the town authorized and instructed him ,to bring, the action brought under the direction of the supervisor assailed the authority of the commissioners to issue the bonds, the sufficiency of the evidence before the county judge to sustain his decision that they should be issued, and the constitutionality of the legislative acts authorizing such issue. All that was really decided in that case was that the resolution of the town meeting did not authorize the action which the supervisor had brought, and that the supervisor alone had no power to institute such an action.

The language of the court in Town of Fort Covington v. U. S. & C. R. R. Co. (8 App. Div. 223), so far as it indicates that the question of authority to bring the action might be raised on motion, was purely obiter. The court there held that the town had a right to bring the action and that it was not necessary to aver or prove action on the part of the town meeting in order to entitle a town to recover upon a cause of action shown to exist in its favor.

We have not considered the other questions raised upon the argument of this appeal, viz., whether defendants’ remedy was by a motion of this character or by way of defense pleaded in the answer and proved upon the trial, or whether, if defendants might take this objection, it has not been waived. We prefer to, put our decision upon the broad ground that the action of the town board was sufficient, in the first instance, to authorize the bringing thereof.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Thomas, Rich and Carr, JJ.,• concurred; Jenks, J., taking no part.

Order affirmed, with ten-dollars costs and disbursements.  