
    Philip Gorr, Plaintiff, v. Village of Port Jervis, Defendant.
    
      Town constable, employed to execute process of a justice of the peace under a resolution of the trustees of Port Jervis, cannot recover therefor—the police constable should he employed.
    
    Where the trustees of the village of Port Jervis pass a resolution providing that all commitments issued by the police justice be placed in the hands of town Constables, although section 86 of the village charter (Laws of 1896, .chap.-529) provides that such process shall be delivered to, and be executed by, a salaried officer of the village, known as a police constable, the village is not liable for the services of a-town constable in executing process delivered to him by the police justice in pursuance of the resolution of the trustees and in violation of the charter.
    The resolution-does not make the town constable a special policeman of the Village under section 39 of the charter.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    ‘ Alfred Ma/rvvn, for the plaintiff.
    
      JR. JEd. Schofield, ior the defendant.
   Jenks, J.:

The facts are agreed upon. Plaintiff was a constable of the town of Deer Park in the county of Orange. The defendant is a municipal corporation chartered as a village under chapter 529 of the Laws of 1896, entitled “An act to revise, amend and consolidate the several acts relating to the village of Port Jervis and to repeal certain acts and parts of acts.”

Between June 25, 1897, and October 31, 1897, plaintiff, at the request of and in pursuance of writs, commitments, warrants and other processes delivered to him by Joseph V. McCormick, as police justice of the village, performed certain services and made certain disbursements in criminal actions pending in and issued out of the court of said police justice. On May 3, 1897, the board of trustees of the defendant passed this resolution :

“ The matter of the bills rendered the village by the police constables for carrying and transportation was brought before the Board by the Corporation Attorney. After some discussion it was moved by Trustee Wood, seconded by Trustee Purtell, that all commitments issued by the Police Justice be placed in the hands of town constables.”

The decision of this controversy does not turn upon the question whether the plaintiff had the power, under the Criminal Code, to execute these processes, but whether he is entitled to be paid therefor ■ from the village funds. The claim of the plaintiff is based upon his employment by the police justice, under authority of the-foregoing resolution. Section 2 of the charter provides for a police justice of the village whose jurisdiction is prescribed by section 10. Section 2 provides for one or more police constables, as the trustees shall determine. Section 36 provides that the police constables shall possess the same powers and perform the same duties within said village, and be subject to the same liabilities, as town constables in the town of Deer Park, and that they shall “ execute all civil and criminal processes issued by the police justice, * * * and such police justice * * * shall deliver all such processes to the police constables, or one of them, to be executed.” Section 37 prohibits the receipt of fees by the police constables, and provides in lieu thereof a salary to be fixed by the trustees, not to exceed $1,000 per annum. I find no express authority vested in the board of trustees or in the police justice to employ this plaintiff to execute the processes in question. On the contrary, there is a plain direction of the village charter that such processes shall be served by the salaried village officer known as the police constable, and that the processes shall be delivered to this officer for that purpose. Process ” is generic, and is applicable to the various orders or papers served by the plaintiff. (People v. Nevins, 1 Hill, 154,169.) While it is undoubtedly true that a municipal corporation has implied powers, these powers must be necessarily incident or essential to some express power. What incidental or express power can be spelled out of the administration of law by the village police justice to employ an outsider to serve criminal process when the organic law of the village prescribes that he shall deliver them to the village police constables, and that they shall execute them ? 'Section 100 of the charter expressly provided that no officer of the village should have power to assent to incurring any debt or liability on the part of the village contrary, to the provisions of the charter, nor shall any such debt or liability be paid from the money or property of the village. Section 99 provides that the village shall not incur any debt or. liability beyond the amount of taxes applicable to the payment of such debts or liabilities which shall have been voted to be raised in such village according to law. The Village Law (Chap. 414, Laws of 1897), which is, I think, applicable (See § 340 thereof), provides by section 314: “ A village is not liable upon a contract made by an officer or a board in the name or on behalf of the village unless it is authorized bv law.” The plaintiff could contract with the village only through its agents, who were duly authorized, and he was bound to know their limitations. (Donovan v. Mayor, 33 N. Y. 291, 293 ; Lyddy v. Long Island City, 104 id. 218.) The plaintiff further contends that the resolution in question, ex vi termini, made the plaintiff a special policeman by virtue of section 39 of the village charter, which reads: “ The president of the village shall have power, whenever the public interests shall require, to appoint special police, Avho shall hold their office, by virtue of such appointment, for such period as the president or board of trustees shall direct. Such special police shall forthwith take the oath of office,, and shall, thereupon, become invested with all the powers and shall discharge all the duties of police constables under this act and in pursuance of the statutes, as they may be directed by the president or other competent authority. The number of special police which may at any time be appointed shall be determined by the board of trustees, and such special police may receive such compensation as shall be fixed by said board of trustees, not exceeding three dollars per day.”

The resolution reads that certain processes should be placed in the hands of town constables, and, therefore, the contention must be that the placing of a process in the hands of a town constable made him a special policeman of the village. There is not the slightest evidence that the plaintiff ever claimed to be such officer or ever qualified by taking the oath of office prescribed. The contention is hardly worth further consideration. But it may be pointed out that as such special policeman is invested with the powers and discharges the duties of a police constable (§ 39), the distinction is but in name and. in the temporary character of the appointment, and that section 35 of the charter provides that no police constable shall be appointed who is a constable of the town of Deer Park. Now, the plaintiff was at all times a constable of that town.

Judgment for the defendant on submitted case, without costs.

All concurred, except Sewell, J., taking no part.

Judgment for the defendant on submitted case, without costs.  