Hequembourg v. Bookstaver — 26 N.Y. St. Rep. 479

Majority

p. 479

Charles E. Hequembourg, App’lt, v. Willlam Bookstaver et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

1. Costs — Separate bills — "When sot allowed.

In an action brought against a city, its mayor and the members of the common council, to obtain a judgment declaring the act in relation to lighting the city by electricity unconstitutional, the defendants appeared separately by different attorneys, held, that all these persons being public bodies and no relief being sought against them personally, they should have appeared by the city attorney, and that separate bills of costs on discontinuance of the action should not be allowed.

2. Same.

The water works commissioners were also made defendants and appeared by another attorney. Reid, that as they had always been represented in all public matters by a separate attorney, an allowance of a separate bill of costs to them was not improper.

Appeal from that portion only of an order made at the Erie special term which imposed the payment of four bills of costs upon the plaintiff as a condition of his discontinuing this action.

John G. Milburn, for app’lt; Walter D. Holt, for the city of Dunkirk, resp’t; Walter W. Holt, for William Bookstaver, mayor, etc., resp’t; Stearns & Kingsley, for Flahaven and ors, members of the common council, resp’ts; Charles D. Murray, for Coleman and others, water works commissioners, resp’ts.

If there was proper occasion for the separate -appearance of these defendants respectively, the allowance to each of them of the costs of the action must be upheld. If on the ■contrary there is but one class of defendants representing the city of Dunkirk, all the defendants engaged in one common public purpose, there was no occasion for them to appear separately in the action and consequently there was no warrant of authority for an allowance to them, in the exercise of the sound discretion of the court, of a separate bill of costs upon the voluntary discontinuance of the action by the plaintiff.

■ The object of the action as disclosed by the complaint Was to procure a judgment of the courts that chapter 29 of the Laws of 1888, not having received the governor’s signature within ten days from the time that it was received by him from the legislature, never in truth and in fact became a law, and that the same was unconstitutional. The object of the act was the construction of an electric light plant in the city of Dunkirk to supply private consumers as well as the streets and' public buildings. By its terms the operation of the electric light plant was placed upon the board of water commissioners, which body, the complaint alleges, was not legally organized and was incapable of receiving from the legislature such a public duty.

The defendant, William Bookstaver, is the mayor of the city of Dunkirk; Charles J. Flahaven, Cornelius Stumm, Byron Rathbun, S. M. Smith, Michael J. O’Donnell, Thomas C. Jones, Patrick Higgins and Harry J. Gibbs, Jr., are members of the common, council of such city.

p. 480

The defendants, William T. Coleman, John Maddigan, George Abell, Louis Heyle, M. L. Hinman, John S. Beggs and Julian T. Williams, are the water works commissioners of said city, with the mayor as an ex-officio member of such board.

The city, by name, is also made a party defendant.

The single purpose of the plaintiff as disclosed by the complaint was to obtain a judgment of this court declaring the act above mentioned inoperative and unconstitutional. It affected one general public interest, and that was the interest of the inhabitants of the city of Dunkirk. The city, by its corporate name, was a proper party. It appeared by its official attorney. It was well, and, perhaps, prudent to make the members of the common council of that city parties also individually, as it was also the members of the board of the water commissioners, yet no relief was asked against any one of those gentlemen. The sole relief was directed against the corporation known as the city of Dunkirk, represented by these several public officers.

The city attorney of that town clearly represented, and it was his duty, to appear for the mayor and the common council, as well as for the corporation itself. He had no right to delegate his powers to any other person, for there was no clashing of interests between the corporation, the common council and the mayor, but all were engaged in one common purpose to establish an electric light plant for public and private purposes in that city. All of these persons being public bodies, sued as such and no relief being sought against them personally, should have appeared by one attorney, and that too by the person designated by law to act for the general interests of the municipality.

The affidavit of Mr. Murray, however, in behalf of the bill of costs in favor of the water works commissioners, presents a slightly different question. ' It is there conclusively shown by him that, this corporation, the names of whose trustees appear o's defendants, has, by the course and practice of the city itself from its incorporation, been represented in all public matters by its separate attorney, that it has at different times held interests which might grow into matters antagonistic to the city itself, and hence the propriety of separate representation by attorney. It is not clear, therefore, that the city attorney in this instance should have appeared for this, corporation, nor is it clear that he had the right so to appear.

It is seen, therefore, that while all "the defendants when named individually are joined on account of their public relations to the-city, there was a propriety in the separate appearance of those constituting the board of water commissioners. Undoubtedly, as. the case has turned out, it would have been equally safe for those gentlemen to have appeared by the city attorney, yet such has not. been the custom of that body, and we are not prepared to say that it was incumbent upon that board to employ the city attorney in this instance. It follows, therefore, that the allowance for a separate bill of costs to the board of water commissioners was not improper. The allowance to the other defendants, except one general bill to the attorney for the city of Dunkirk, does not seem to us to have been justified by the nature of the action and the relief

p. 481

sought, for the reason that they had no occasion to appear by attorney. In this respect we follow, as we believe, a precedent set by the court of appeals in this case by which they permitted the plaintiff to discontinue his appeal in that court upon the payment of two bills of costs.

From these considerations, it follows that the order .appealed from should be modified in the particulars named in this opinion, and in all other respects affirmed

Dwight, J., concurs; Barker, P. J., not sitting.