Appleton v. Water Commissioners — 2 Hill & Den. 432

Majority

p. 432

Appleton vs. The Water Commissioners of the City of New-York.

Headnote

The Water Commissioners of the city of New-York appointed under the act of May 2d, 1834, are not a corporation, nor liable to be sued as such for work done and materials furnished at their request.

Semble, the remedy on a contract made by such commissioners as public officers, acting within the general scope of their powers, is against the corporation of the city of New-York; or, if they have so contracted as to be chargeable personally, the remedy is by proceeding against them as individuals. i

If money be due for work done or materials furnished at the request of the commissioners, and they have funds in their hands which they wrongfully refuse to pay over, or if they improperly neglect to draw on the city comptroller for the requisite funds, the creditor, it seems, may proceed by mandamus, or maintain a special action on the case against them.

p. 433

On demurrer to declaration, which was as follows: Westchester county, ss. The Water Commissioners of the City of New-York were summoned to answer James Appleton of a plea of trespass on the case upon promises; and thereupon the said James Appleton by R. R. Y. his attorney complains, for that whereas the said Water Commissioners of the City of New- York, on, &c. at, <fcc. were indebted to the said plaintiff in the sum of $35,000, lawful money, for the work and labor, care and diligence of the said plaintiff, &c., and for divers materials, &c.—in the usual form of a count for work and labor, and materials found and provided. Demurrer and joinder.

W. H. Harison, for the defendants.

R. R. Voris, for the plaintiff.

By the Court,

The first act “ to provide for supplying the city of New-York with pure and wholesome water,” was passed in 1834, and there have been several acts since that time on the same subject. (Stat. 1834, p. 451; 1836, p. 709; 1837, p. 350; 1838, p. 88; 1840, p. 126; 1841, p. 298.) The first section of the act of 1834 provides for the appointment by the governor and senate of' “ five persons, to be known as the Water Commissioners for the city of New-York.” This, and the subsequent acts, provide for acquiring lands and constructing works for the benefit of the city of New-York; and the common council of the city" is to procure funds and pay all the necessary expenses of the undertaking. The commissioners have the general charge and superintendance of the work, with power to make contracts for lands, labor and materials, and authority to draw on the comptroller of the city for moneys to be paid to contractors and others. In short, these officers have about the same powers and duties in relation to this work, that the canal commissioners have in the construction of state canals. The water commissioners are not a corporation, and cannot be proceeded

p. 434

against as such. If the individuals holding the office of water commissioners have made any contract with the plaintiff by which they have bound themselves personally, the remedy of the plaintiff is by proceeding against them as individuals. If they have contracted as public officers acting within the general scope of their powers, the remedy is against the corporation of the city of New-York. Or, if money is due the plaintiff, and the commissioners have funds in their hands which they wrongfully refuse to pay over; or if they improperly neglect to draw on the city comptroller, the plaintiff may, perhaps, proceed by mandamus, or have a special action on the case. But those questions need not be settled at this time. It is enough that there is no such corporation as the plaintiff has attempted to implead.

Judgment for defendants.