Lorillard v. Town of Monroe , 12 Barb. 161 ( 1851 )

By the Court,

Barculo, J.

The view that I take of this case will render it unnecessary to examine, in detail, the several points made by the respective counsel. I shall therefore only discuss the question whether an action will lie against a town for an error made by the assessors in assessing the whole of a tract of unoccupied lands, a portion of which lies in an adjoining county.

It was conceded, on the argument, that no direct authority or precedent for maintaining such an action could be found in the reports of this state. The question must be determined, therefore, upon principle and analogy. Our statutes regulate the mode of proceeding in actions brought against counties or towns, or by or against the officers; but they do not determine what actions may be brought against counties or towns, except under the general designation of such as “ are allowed by law.” I am unable to discover any principle upon which this action can rest; unless it can be established that the assessors stand in the relation of agents of the town. Do they sustain this relation 1 Can the various officers whose offices are created by our general statutes, such as commissioners of highways, superintendent of schools, overseers of the poor, &c. (for they all stand upon the same footing in this respect,) be deemed the agents of the towns in which they are elected, so as to render the town responsible to actions, in its corporate capacity, for their mistakes, or nonfeasance, or misfeasance, or malfeasance ?

I am unable to discover any thing either in the character of the offices, or the duties and responsibilities which they impose; or in the relation which these officers bear to their towns respectively; or in the terms of the statutes relating to this subject, which will warrant the conclusion that the legislature intended to make such officers the agents of the towns in the sense supposed.

The office of assessor does not originate with the town; it is created by the act of the legislature. The duties performed by him are not imposed upon the town; it is no part of the power or duty of a town to assess and collect taxes. An assessor is, in this respect, an officer of the state, with duties circumscribed by a territorial limit. He receives his instructions from the statute; he is not controlled or directed in the slightest degree by his town ; and when the tax list is completed, it is reviewed by the board of supervisors, who issue their warrant for the collection. Nor do the moneys, when collected, go into the treasury of the town, but pass directly into the treasury of the county, except such as are applied to the payment of the various officers for their public services. It is true that the electors of a town select their assessors, and of course have the power of changing them annually. But no one will pretend that this constitutes the legal relation of principal and agent. The electors act under the law, and when they have elected their assessors, their power over them ceases. They can neither bind them by instructions, nor revoke the powers which they possess, during their term of office. It is quite clear that there is nothing like an agency here, which can render the principal responsible. Indeed, I think it may be safely said that in regard to town officers, generally, whose duties are prescribed by the statute, their towns are not liable to an action for a violation of their duty. If any remedy exists, as I think there does in most cases of mere ministerial officers, it is against the delinquent himself. As to judicial duties, it is well settled that no civil action will lie under any circumstances. (Wilson v. Mayor, &c. of New- York, 1 Denio, 595. Weaver v. Devendorf 3 Id. 117.)

The cases in this state which are supposed to countenance this action, are all reconcilable with the views above expressed. It is no uncommon occurrence to recover against a municipal corporation for a neglect or violation of the duties of its officers. Thus, the corporation of the city of New-York have frequently been held liable for injuries occasioned by the unsafe condition of the streets and sewers. (Dehnonico v. City of New- York, 1 Sandf. Sup. Court Rep. 223. Mayor, &c. of New-York v. Furze, 3 Hill, 612.) But it will be found on examination that all these cases rest upon the position, that the officers are the agents of the corporation, engaged in performing duties imposed upon the principal. Thus, it is the duty of the corporation of the city of New-York, to keep the streets and sewers in repair, and if this duty is neglected by the officers selected to take charge of them, the corporation must be held responsible. And in the case of Martin v. Mayor, &c. of Brooklyn, (1 Hill, 545,) it was expressly held, that a municipal corporation was not liable for the misfeasance, or. nonfeasance of one of its officers, in respect to a duty specifically imposed by the statute on the officer. Judge Co wen makes use of the following language: “No ease has been cited wherein it has been holden that municipal corporations are liable for omissions of a duty specifically imposed by statute upon one of their officers. In this respect, the latter are quasi civil officers of the government, though appointed by the corporation.” “ Here the trustees can not be removed at the pleasure of the corporation; and in regard to streets, they are to obey the statute, like town commissioners. Several cases were cited on the argument wherein it was held that such officers are liable personally, but none that the corporation who elect them is liable as such. You may as well make a tourn liable for the nonfeasance of commissioners of highways in stopping or delaying proceedings to lay out a new road.” (See also Bailey v. Mayor, &c. of New- York, 3 Hill, 531; same case in court of errors, 2 Denio, 433.)

The cases cited from the reports of the state of Massachusetts, although from the peculiarities of their system of government, they seem to favor an action of this .description, do not fully sustain the position of the plaintiff. In the case of Preston v. The City of. Boston, (12 Pick. 7,) the plaintiff was a nonresident of the city of Boston, and not liable to he taxed there at all for personal ‘ property. He was therefore allowed to recover back the money collected of him, upon the ground that the city assessors had no jurisdiction over him, and the court distinguish the case from that of Osborne v. The Inhabitants of Danvers, (6 Pick. 98,) where the plaintiff, being liable to taxation, was erroneously taxed for personal property invested in business in the city of Sew-York, and was not permitted to recover; the court holding that it was a case of overvaluation, for which there was no remedy but by appeal.

Whether the plaintiff has any remedy against the assessors, is left in some doubt by the decisions of this court. In the case of Bounders v. Springsteen, (4 Wend. 429,) an action of this nature was brought against the assessors, before a justice of the peace, and a recovery had; on appeal a similar judgment was recovered in the common pleas, which was subsequently affirmed by this court. But it does not appear that the question was raised whether the action would lie against the assessors. The only question discussed, in the opinion of the court, was, whether the land was properly taxable in the town of Lewiston. On the other hand, the assessors in the present case, having jurisdiction of the subject matter by reason of a portion of the lands lying, and being clearly taxable, within their town; and being authorized to assess that part lying in the county of Rockland, in case the lands were to be considered as occngpea by the plaintiff, or his agents, in the town of Monroe, in mining the question of occupancy, and their right to would seem to perform a judicial act, within the reason! Van Rensselaer v. Cottrell, (7 Barb. S. C. Rep. 127) Van Rensselaer v. Witbeck, (Id. 133.) If this be so, clearly no action will lie against them. (1 Denio, 595. 117.) The only redress, therefore, which the plaintiff has, must be obtained by petition to the board of supervisors of the county.

•We think that the justice was correct in charging the jury that the lands, were unoccupied; but as the complaint does not state facts sufficient to constitute a cause of action, the judgment below must be reversed.

[Kings General Term, October 6, 1851.

Morse, Bartulo and Brown, Justices.]