Van Valkenburgh v. Mayor of New York , 43 Barb. 109 ( 1864 )

By the Court,

Geo. G. Barnard, J.

The legislature of the state of New York (Sess. L. 1860, ch. 405, p. 1003) enacted that certain persons therein named be constituted a board of commissioners, “to locate and erect in the city of New York a suitable building to be used as a court house and place of detention of persons brought to the police court in said district,” and “the ground and buildings so to be purchased and erected shall be the property of the city of New York.”

It is also, by the act, provided that the board of supervisors of the county of New York shall levy by tax, an amount not exceeding $50,000. Under this act the commissioners have selected and agreed to buy of the plaintiff, for and on behalf of the city, the lands described in the complaint. The city refuses to accept the deed, and the plaintiff brings this action against the corporate authorities, to compel a specific performance of the contract. The defendant, by demurrer, presents this question: Are the defendants liable for the acts of this commission ?

If these commisioners are, by force of the act, agents of the city, then this demurrer is not well taken, and the plaintiff is entitled to judgment.

The first case in our courts which I find, bearing upon this question, is Appleton v. The Water Commissioners of New York, (2 Hill, 432.) These commissioners were appointed by the governor and senate to construct the Croton aqueduct, for the benefit and at the expense of the city of New York. It was held that the water commissioners were not liable, and that the remedy "was against the city. The reasons for this judgment are not given.

In Clark v. The Mayor &c. of New York, (4 Comst. 338,) .it was decided that the judgment for work done under a contract with the Croton water commissioners, against the Mayor, be reversed for errors on the trial, and the question of the defendant’s liability was not noticed.

[New York General Term, November 7, 1864.

In the case of Bailey and others v. The Mayor &c. of New York, (3 Hill, 531,) it was distinctly adjudged that the water commissioners were the agents of the city, but upon the ground that by the terms of the water commissioners’ act the city had the power to accept the charter or reject it, and the common council did by resolution accept it—Mr. Justice Melson using this language: “The acceptance was entirely voluntary; for the state could not enforce the grant upon the defendants, against their will. This would be so on general principles, (Angell & Ames on Corporations, 46, 50, and cases cited f) but here the charter itself left it optional with the common council to accept or not.”

This last case went to the court of errors, (The Mayor &c. of New York v. Bailey, 2 Denio, 433,) and was affirmed; one sénator only—Senator Barlow—holding the broad principle that the act of itself made the commissioners agents of the city.

I think, therefore, that the cases fail to establish the agency of the commissioners for the defendant in this case, where there was no acceptance of the act by the defendant.

It requires clear authority to warrant this claim. An agent established by law to purchase property for the defendant and at its expense and without its consent, is an extraordinary assumption of power. I can not yet assent to it.

Judgment affirmed with costs.

Bernard, Sutherland and. Geo. G. Barnard, Justices.]