
    Joseph Seeley, Respondent, v. The City of Amsterdam, Appellant.
    
      Water commissions of Amsterdam—the city may be sued to recover damages for their trespass— exclusive remedy for obtaining compensation for land tabeen — sufficiency of an answer wbiicbi does not allege that the locus in quo was designated on the map filed by the commissioners.
    
    The hoard of water commissioners of the city of Amsterdam, which was created a body corporate by chapter 101 of the Laws of 1881, is not an independent body, but is merely an instrumentality of the city government, and a person whose property has been unlawfully appropriated by such hoard may maintain an action against the city to recover the damages sustained by him.
    The method provided by the statute of obtaining compensation for property taken by the water commissioners, namely, through the medium of commissioners of assessment, is exclusive only where the water commissioners have proceeded in conformity with, and not in disregard of, the statute.
    An allegation in the answer interposed by the city, that before entering upon or taking any lands or rights, the water commissioners “caused the survey and map required by said act of the Legislature to be made, duly signed and filed, upon which was designated the lands and rights proposed to be taken,” but which does not aver that any of the plaintiff’s property or rights were desig- ■ nated upon the map, is not an averment of such a taking of the plaintiff’s property under the statute as requires him to have his damages ascertained by commissioners of assessment. '
    . Appeal by the defendant, The City of Amsterdam, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 6th day of April, 1900, upon the decision of the court rendered after a trial at the Saratoga Special Term., sustaining the plaintiff’s demurrer to the second and third defenses in the defendant’s answer.
    •The complaint alleges that the plaintiff is the owner off a piece of land in Providence, Saratoga county, through which flows a private" stream, known as Haan’s creek, to the use of the waters of which he is entitled; that in the year 1890 the defendant wrongfully constructed dams across the said creek above the premises of the plaintiff, and by means of such dams, pipes and other appliances, diverted the waters of the stream and .has since used the same for the purpose of supplying the inhabitants of the city of Amsterdam with water, and has prevented the waters of the creek from running to and upon the plaintiff’s premises.
    - The "defendant, for a second defense, avers that the acts complained of were done by the water commissioners of Amsterdam, created a body corporate by chapter 101" of the Laws of 1881; that in pursuance of the power and authority conferred upon them in the said act, the said water commissioners in 1889 purchased a piece of land, in the town of Providence, upon Haan’s creek, at a point about a mile above the.plain tiff’s lands, constructed thereon a dam and diverted the waters of the creek, through ¡lipes, for the purpose of supplying Amsterdam with water, and.that the action is, for that reason, not maintainable against this defendant.
    For a third defense the defendant, reiterating the allegations of the second defense, further avers that before entering upon or taking any lands or rights in the town of Providence, and in or about the year 1889, the water commissioners of Amsterdam caused the survey and "map required by said act of the Legislature to be made, duly signed and filed, upon which were designated the lands and rights proposed to be taken; that the commissioners were unable to agree with plaintiff as to the value of his rights or the damages sustained by him, and did not apply to the Supreme Court for the appointment of commissioners to determine the damages sustained by the plaintiff; that the plaintiff has failed to apply to the court for the appointment of commissioners of assessment, and having an adequate remedy for his damages under the said act, he cannot maintain this action.
    The plaintiff’s demurrer to each of these defenses, on the ground that it is insufficient in law upon the face thereof, was. sustained, and, from the interlocutory judgment entered upon the decision, this appeal is taken.
    The act under which the questions arise is chapter 101, Laws of 1881, as amended by chapter 197, Laws of 1882; title 8, chapter 131, Laws of 1885; chapter 264, Laws of 1887.
    
      C. S. Nisbet, for the appellant.
    
      Edgar T. Brackett, for the respondent.
   Edwards, J.:

An analysis of chapter 101 of the Laws of 1881, as amended, shows that the primary purpose of the Legislature was to supply the city of Amsterdam with water, and that the board of water commissioners is the agency created by the Legislature for the accomplishment of that purpose.

The duties of the commissioners, as prescribed by the act, are to examine and consider all matters relating to supplying the city with water; to adopt plans for procuring such supply; to purchase and to acquire- by condemnation proceedings property required for the purpose of the act; to borrow money upon the credit of the city and to execute bonds to secure the payment of the same; to establish a scale of rents for water, to collect the same and to apply the receipts, above expenses, to the payment of the interest of the loans and the creation of a sinking fund for the payment of the principal; and to file annually a detailed statement of their accounts with the clerk of the city of Amsterdam. The act provides that all property purchased by the commissioners or acquired by them through condemnation proceedings shall belong to the city, and the amount of any award made for such property shall be a liability against the city; that the money borrowed by the commissioners shall be upon the credit of' the city, and the bonds executed by them shall be a liability against the city; that in case the receipts for water rents and charges, above expenses, are insufficient to meet the interest and principal as it falls due, the deficiency, as certified by the water commissioners to the mayor and common council, shall be assessed, levied and collected from the taxable property of the city. It further provides that upon the expiration of the terms of service of the commissioners named in the act their successors shall be appointed by the mayor and common council of the city, by whom also all vacancies are to be filled by appointment.

From these provisions it will be seen that the board of water commissioners, in the performance of its duties, acts solely for the benefit of the municipality.' The city owns the property acquired by the board, is liable for the debts contracted, and to it the board is accountable for the funds which it administers. The board is not an independent body, but is merely an arm to supply one of the wants of the municipal body. Apart from the needs of the city, there is no reason for its existence. In the charter it is recognized as a department of the city government (Laws of 1885, chap. 131, tit. 8), and within the authorities it is a department for. whose misfeasance the city is liable. (Deyoe v. Village of Saratoga Springs, 3 T. & C. 504; Bolton v. Village of New Rochelle, 84 Hun, 281; Pettengill v. City of Yonkers, 116 N. Y. 558.) Nor does the fact that the board was created a body corporate in any way affect the question of its agency. It is as competent for the Legislature to make a corporate as it is an unincorporate board a department or instrumentality of the city government. The various boards of cities are not infrequently, by their charters, made bodies corporate. I think, therefore, that the Special Term was right in sustaining the demurrer to the second defense:

The demurrer to the third defense was also properly sustained. The defendant contends that, the plaintiff’s only remedy for the injury complained of is that provided for by the statute through the medium of commissioners of assessment. While the method of obtaining compensation provided for in the statute for property taken by the water commissioners is, I think, exclusive (Calking v. Baldwin, 4 Wend. 668 ; Heiser v. Mayor, 104 N. Y. 68), it is exclusive only when the water commissioners have proceeded to take the property in pursuance of the authority conferred upon them by the statute. The act does not provide that for all injuries to property the damages shall be ascertained by a commission of assessment. If the water commissioners, not in conformity with, but in disregard of, the statute, take or injure property, the owner may resort to his common-law remedy. ■ The statute invests the water commissioners with the power of determining what property is required for the purposes of the act, and defines their mode of procedure in taking such property. It makes it their duty to examine and consider all matters relating to supplying the city with water; to adopt plans for procuring such supply; authorizes them to purchase such “ lands, tenements, hereditaments, rights and privileges” within the county of Montgomery, or any adjoining county, as may be required for the purpose, and requires them, before entering upon, taking or using any land for the purposes of the act, to cause a survey and map to be made and filed of the lands intended to be taken or entered upon for any of said purposes, by and on which the land of each owner or occupant shall be designated. The purpose of a survey and map evidently is to furnish some record evidence of the boundaries of the land and the extent of the rights which the water commissioners intend to take or enter upon for the purpose of supplying the- city with water. Without some designation by the commissioners of the property and rights required to be taken, the owners would be without the necessary information for making an application for the appointment of commissioners of assessment or any basis for an assessment of damages. The making and filing of the map is a pre-requisite to the taking of property. (Rider v. Stryker, 63 N. Y. 136.) The defense demurred to sets up these various provisions and requirements of the statute and alleges “ that before entering upon or taking any lands or rights in the town of Providence, Saratoga county, and in or about the year 1889, said ‘Water Commissioners of Amsterdam’ caused the survey and map required by said act of the Legislature to be made, duly-signed and filed, upon which was designated the lands and rights proposed to be taken; ” but it does not aver that any property or rights of the plaintiff were designated upon the map. The defense contains no averment of such a taking of the plaintiff’s property under the statute as requires him to have his damages ascertained by commissioners of assessment, and for the injuries complained of I think his common-law remedy is available.

The direction in the interlocutory judgment for entry of final judgment in the event of defendant not serving an amended answer and paying costs was erroneous, for the reason that the answer contained a general denial and an issue remained to be disposed'of. (Code Civ. Proc. § 1021.) This was probably through inadvertence, and would have been corrected had an application been made. The interlocutory judgment should be modified by striking out that direction, and as thus modified should be affirmed, with costs of appeal to the respondent, and with the usual leave to amend on payment of costs.

All concurred.

Interlocutory judgment modified by striking out the direction for entry of final judgment, and as thus modified affirmed, with costs of appeal to the respondent, and with the usual leave to amend on payment of costs.  