Mark v. Village of West Troy — 52 N.Y. St. Rep. 782

Majority

p. 782

George Mark, Resp't, v. The Village of West Troy, App'lt.

(Supreme Court. General Term, Third Department,

Filed May 9, 1893.)

Headnote

1. Villages—Presentation of claim.

Presentation of a bill to the chamberlain and president of a village is not sufficient to entitle the holder to maintain an action against the village thereon, where its charter requires a formal presentation to the board of trustees.

2. Same—Employment of counsel.

Where the charter of the village expressly provides that no officer shall contract any debt on its part unless specially authorized by the board of trustees, it is not sufficient, in an action for services as counsel, to show an employment by the attorney for the village or its president; but the plaintiff is bound to establish such special authority from the board in order to maintain his action.

p. 783

Appeal from judgment in favor of plaintiff, entered upon report of a referee.

Action to recover for services performed by plaintiff’s assignor, Galen E. Hitt, as counsel for defendant in two actions. Said Hitt testified that he rendered the services at the request of the attorney of record and of the president of the village.

Eugene McLean, for app'lt; Galen R. Hitt, for resp't.

We regret that we are unable to agree with the views adopted by the referee in this case. Plaintiff’s assignor performed meritorious and valuable services in actions where defendant was a party, and should receive compensation therefor.

But the claim on which the action is brought was not shown to have ever been presented as required by defendant’s charter. Chapter 52, Laws of 1879, §§ 28 and 29, amending §§ 32, 33 of the charter. The act requires that a bill shall be made out in items and verified and formally presented to the hoard oj trustees before an action can be maintained. It must be presented at a regular or stated meeting. The only proof of presentation of the bill was to one Hart, chamberlain, and Holsapple, president of defendant. That was not a presentation to defendant's trustees required by the charter as a prequisite to an action. The formal presentation to the defendant’s trustees should have been alleged in the bill and proved upon the trial.

Again, plaintiff failed to show the retainer of his assignor by defendant. An attorney, as such, has' no authority to employ counsel. Matter of Bleakley, 5 Paige, 313, 314. Again, the charter of defendant expressly provides, § 32 amending § 37, that no officer of the village, or any other person, shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do, ancj hence the president of defendant could not retain Mr. Hitt. The plaintiff, as part of his case, was bound to show an employment of Mr. Hitt in pursuance of the provisions of the charter, which he failed to do, and hence, we think, the court erred in not granting the motion for nonsuit.

This case is not like that of Moore v Mayor, 73 N. Y., 238 , and kindred cases, where a party, in good faith enters into a contract with public officers within their power to make, and performs, in which ease the officers are estopped from alleging the irregularity of their action to the prejudice of the party who so performed. Those eases do not apply if there is a statutory prohibition of power unless exercised in the regular way. Clute v. Robison, 38 Hun, 284 .

In this case there was a prohibition in the charter of defendant which prevented the president or attorney from retaining Mr. Hitt unless specially authorized by the board of trustees. It was incumbent on plaintiff to establish this special authority to maintain his action.

Downing v. Rugar, 21 Wend., 178 , and Hills v. Peekskill Bank, 26 Hun, 161 , cited by respondent, are not similar to this. Those were cases where public officers, consisting of two or three, assumed to act in the name of all, or of a majority, and it was

p. 784

assumed that all the officers acted, or were duly notified of the meeting where action was had. In this case it was not shown that the trustees of defendant ever acted, or assumed to act, in the matter of retaining Mr. Hitt. If it had appeared that a special meeting of defendants trustees had been called in the matter of retaining Mr. Hitt as counsel, and that a mere quorum had attended who passed a resolution to employ him, it would probably be assumed that those trustees who did not attend had been notified of the meeting.

The judgment should be reversed and a new trial granted, costs to abide the event.

Matham, P. J, concurs.