Napier v. City of Brooklyn

In 1894 the legislature passed an act creating a department of parks in any county of this state containing a city with a population in excess of 800,000, and in which the boundaries of the city were not coterminous with those of the county. Laws 1894, c. 758. This statute, although general in its terms, could apply only to the county of Kings. It provided, in effect, that the department of parks of the city of Brooklyn should be the department of parks of the county, and should have and possess all the powers and duties then held and exercised by said department in relation to any park, parkway, road, highway, boulevard, or concourse in said county. See section 5 of statute cited. In 1895, pursuant to the provisions of this statute, a piece of land near Ft. Hamilton was acquired for park purposes from the Dyker Meadow Improvement Company. At this time Frank Squire was the park commissioner of the city of Brooklyn, and as such was at the head of the department of parks of Kings county. For some years previous the plaintiff had been a yearly tenant in .occupation of a portion of the land thus acquired, and, as sufficiently appears from the proof, had received permission from the Dyker Meadow Improvement Company to erect a pavilion and bath houses thereon, with liberty to remove the same at any time when the owner should effect a sale of the land. Upon the sale and conveyance to the county in 1895, the plaintiff sought to remove the structures in accordance with the terms of his contract with the Dyker Meadow Improvement Company, but Mr. Squire refused to allow him to do so, and, through his subordinates in the department of parks, took possession of the buildings, together with a considerable quantity of personal property therein contained, and withheld possession thereof from the plaintiff during his term of office. By virtue of the enactment of chapter 954 of the Laws of 1895, the county of Kings and the city of Brooklyn were consolidated into one body corporate and politic, by the name of the city of Brooklyn, from and after January 1, 1896. All the rights, privileges, franchises, property, interests, claims, and demands of the county of Kings became vested in the city of Brooklyn from and after that date, and the local administration and government of the city of Brooklyn and county of Kings were thereafter vested in and performed by a single corporation bearing the name of the city. After this consolidation, and in March, 1896, the plaintiff made a demand upon Mr. Timothy L. Woodruff, who was then park com

Under the doctrine of Markey v. Queens Co., 154 N. Y. 675 ", 49 N. E. 71 , and the cases therein referred to,4!! seems quite clear that the county of Kings could not be held liable in a civil action for conversion by reason of the conduct of Commissioner Squire or his subordinates in taking possession of the plaintiff’s property. While the act was unlawful, the remedy of the owner was against the individuals by whom the wrong was done, and not'against the county. Nor, as it seems to me, did the transfer of the property of the county to the city, by virtue of the consolidation of the two governments, which went into effect at the beginning of 1896, confer upon the plaintiff any different or other right of action by reason of the conversion than that which belonged to him prior to the consolidation. The plaintiff’s buildings and chattels had never become the property of the county, although taken from him by persons assuming to act as county officers; and the city of Brooklyn acquired no better title to the property than belonged to the county. Up to the time, therefore, of the demand upon Commissioner Woodruff, the plaintiff had no grievance against the city of Brooklyn, or any officer thereof; and, if the maintenance of the present action depended solely upon what had happened before that time, I do not see how this judgment could be upheld. When, however, the plaintiff asked Mr. Woodruff, the new park commissioner of the consolidated corporation, for the restoration of his property, and the commissioner declared that it rightfully belonged to'the city of Brooklyn for the park department, and for that reason refused to return it, I think that he asserted in behalf of the city a right of dominion and control over the property which constituted an .actionable conversion thereof at that time. For this conversion the city is liable, unless exempted by a provision in the charter presently to be considered. Municipal corporations proper "are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties.” 2 Dill. Mun. Corp. (4th Ed.) § 966. The action of Commissioner Woodruff in declining to' comply with the plaintiff’s demand for a return of his property, whether rightful or wrongful, was done by him in the course of the performance of his duties as head of the department of parks of the city of Brooklyn. Under the charter of Brooklyn, as enacted in 1888, the department of parks was vested with the exclusive government, management, and control of all the parks in the city, subject, however, to the powers of the common council in relation thereto. Laws 1888, c. 583, tit. 16, § 2. So long as this provision remained in force, it was clear that the management of the parks was a duty of the municipal corporation, and that the department of parks, being charged with that duty, was an instru

But it is argued that the defendant is relieved from responsibility for the act of the park commissioner in retaining possession of the plaintiff’s property, after it was demanded in 1896, by the exemption clause of the charter, which provided that the city of Brooklyn “shall not be liable in damages for any misfeasance or nonfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them, or any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them, as officers of government, by any provision of this act.” Laws 1888, c. 583, tit. 22, § 28. It will be observed that this exemption relates only to the wrongful or negligent performance of a duty imposed by the charter itself. Whatever Commissioner. Woodruff did with

I think that the judgment is right, and should be affirmed. All concur.