
    Edward A. Mollnow et al., Plaintiffs, v. John A. Rafter, Mayor of North Tonawanda, Henry Smoyer, Treasurer, Frank X. Kinzey et al., Defendants.
    (Supreme Court, Niagara Equity Term,
    March, 1915.)
    Taxpayer’s action — order for payment of judgment recovered against police officer for assault is “ gift to an individual ” within State Constitution, art. VIII, § io — effect of Home Rule Act of 1913 — reimbursement to officer for expenses in defense of suit.
    Where in making an arrest a police officer uses more force than is necessary the only remedy of the victim of the assault is against the officer.
    
      An order drawn on a city treasury to pay a judgment recovered against one of its police officers in an action for assault in using unnecessary force in arresting plaintiff is invalid as a “ gift to an individual ” within the meaning of section 10 of article VIII of the State Constitution.
    A contention that the judgment against the police officer should be paid by the city under the so-called Home Rule Act (Laws of 1913, chap. 247, art. lia, § 20[5]), which provides that a city “is empowered to pay * * * claims equitably payable by the city, though not constituting obligations legally binding on it,” held untenable, as said statute which does not purport to enlarge the constitutional prohibition against giving city money to individuals specifically provides that the city “shall have no power to grant compensation to any public officer, servant or contractor.”
    In a taxpayer’s action to restrain the payment of money to the police officer, expended by him in the necessary defense of the action for assault, the court will leave it to the city treasurer to exercise his judgment thereon.
    Taxpayers’ action to restrain payment of money to defendant Kinzly "by city treasurer of North Tonawanda, N. T.
    Elias Root, for plaintiffs.
    A. F. Premus (James P. Lindsay, of counsel), for defendants.
   Pound, J.

Defendant Frank X. Kinzly was and is a police officer of the city of North Tonawanda. Edward Wiedman, then an infant, by guardian ad litem, sued him in the Supreme Court in June, 1908, for an assault. Kinzly sought to justify on the ground that the force complained of was rightfully and necessarily used in making a lawful arrest. The first trial of the action resulted in a verdict for the defendant. Judgment entered thereon was reversed. On the second trial plaintiff recovered a verdict of $250. Judgment entered thereon was also reversed. On the third trial plaintiff recovered a verdict of $100. Judgment was entered thereon in Niagara county clerk’s office on February 20,1914, for $531.92, including costs and disbursements of three trials and two appeals.

The common council of the city of North Tonawanda has directed that an order be drawn in favor of Kinzly for $596.92 to pay this judgment for $531.92 and also $40 for legal expenses in preparation of brief on appeal and $25 for printing appeal book and brief on appeal. The order has been drawn and payment demanded from the city treasurer, who says he threatens to pay the same. Plaintiffs bring this taxpayers ’ action to restrain the payment of the claim on the ground that it is an attempted gift of city money to an individual and as such prohibited by section 10 of article VIII of the Constitution of the state of New York. Defendants make no claim that the city is legally obligated to pay the judgment, it being elementary that police officers are called upon to answer for their torts in connection with the preservation, of the peace the same as any other citizen and that Kinzly took the risk of being called upon to defend in the courts his conduct as a police officer when he assumed the duties of the position. The city of North Tonawanda would be going beyond its strict legal duty to pay even the expenses of a successful defense of a police officer charged with assault in the course of public duty. When the officer exceeds the use of necessary and reasonable force in making an arrest or makes an unlawful arrest, he ceases to act on behalf of the city and assumes the entire responsibility himself. Victims of his rashness have no civil remedy except against the individual and have no right to look to the city for compensation. Donahue v. Keeshan, 91 App. Div. 602.

But it is urged by the defendants that the so-called Home Rule Act (Laws of 1913, Chap. 247, Art. II-a, § 20, ¶ 5) explicitly provides that a city “is empowered to pay * *' * claims equitably payable by the city, though not constituting obligations legally binding on it ” and that equitably this judgment against Kinzly is a claim payable by the city. The act does not purport to enlarge the constitutional prohibition against giving city money to individuals and it specifically provides that the city “ shall have no power to grant extra compensation to any public officer, servant or contractor. ’ ’

'The common council may appropriate this money for this purpose unless it is “ a gift to an individual.” As to whether it is or is not “ a gift to an individual ” depends (1) on who receives the money and (2) what, if any, moral duty equity and good conscience impose on the city authorities to pay such individual. The payment of the Wiedman judgment by the city at this time would essentially be a payment to Wiedman, and in no sense the payment of expenses incurred or money expended by Kinzly as a public officer. It is not claimed that Kinzly has paid the judgment. The city is to furnish him with the money to pay it and this action might be sustained on the theory that the payment would be a gift to Kinzly himself, because he might not use the money, if he received it, for the purpose of paying Wiedman. Kinzly offers, however, to furnish the city treasurer with a satisfaction of the judgment if the city treasurer will pay the order, and we shall assume that the money will be used to pay the judgment.

The fact that Wiedman’s judgment is against a police officer places the city under no obligation to pay it. The city is neither legally nor equitably bound to pay judgments against police officers. It has always been the rule in this state that the city is not liable for the acts of police officers in the discharge of their public duties. 28 Cyc. 1300.

The defendants’ doctrine of nonbinding equitable claims under the Home Buie Act, if applied to such cases as this, would be fraught with many dangers. The city, being under no legal obligation to pay, could not be compelled to pay such judgment. If it might, in its discretion, pay, it might pay “A” and refuse to pay B,” when both had recovered damages against a police officer for assault inflicted in the same illegal arrest. It might pay judgments recovered against police officers by Attorney X and refuse to pay judgments recovered by Attorney T. If it should be held that Wiedman could be paid, the common council of a city might, in its discretion, audit such claims without suit.

Equity is not law turned upside down. It would be immoral for a city to have an over-sensitive conscience in allowing fancied moral claims against it. The allowance of an equitable claim against a city, as distinguished from a legal claim, suggests in the main the waiver of some technical defense, such as the failure to present a verified claim, rather than the recognition or creation of an obligation which the law says is fundamentally a claim against an individual and not in any sense a claim against the city. It follows that Wiedman has no claim against the city and that to take the city’s money to pay him would be a gift to him and thus inhibited by the Constitution, whether the money passed through Kinzly’s hands or not.

State ex rel. Crow v. St. Louis, 73 S. W. Rep. 623, was the case of a policeman who pursuant to orders and in discharge of his duty to prevent and remove nuisances in the streets shot at a mad steer in the street, but, though using due care, hit a child, for which judgment was recovered against him. It was held that the city might reimburse him without violating a constitutional provision like ours. The opinion is notable as a specimen of judicial humor, but the court merely holds, in principle, that a police officer may be reim-bursed for necessary expenses incurred in removing a nuisance from a public street' and the decision is not in conflict with the views above expressed.

There remains to be considered whether Kinzly may lawfully be paid his expenses incurred in defending the case: It does not appear that he was authorized by the common council to employ counsel and defend the case at the expense of the city, but, under the Home Rule Act above cited, I assume that the council may now ratify his action in doing so, if it could have authorized it in the first place. I hesitate to hold unnecessarily that the legislature cannot provide that a city may assume the necessary expense of defending a police officer who is sued for an alleged assault claimed to have been committed in the course of public duty. As it has never been so held, I shall not restrain the payment of the small portion of this claim which relates thereto, leaving it to the city treasurer to exercise his judgment thereon, for I think that, in this case, his threats of paying the claim if not restrained are technical and for the purpose of provoking this action, rather than indicative of a purpose to waste the city’s money if not restrained. Prepare decision accordingly, but without costs to either party as against the other.

Judgment accordingly.  