p. 836Bartolemy J. Olifiers, App’lt, v. Perry Belmont et al., Resp’ts.(New York Common Pleas, General Term,Headnote
1. Officer—Personal liability.An individual acting under color of right as a public officer, cannot be held personally in an action for damages resulting to a party accepting a contract proposed by such assumed officer, in the absence of any element of deceit, where, through the latter’s mistake as to his powers, the corporate body fails to become bound. So held, in case of members of the committee appointed, under chapter 331 .of 1898, to celebrate the fourth-hundredth anniversary of the discovery of America.
2. Costs—Separate defendants.
Defendants, who appear by different attorneys, are entitled to an .allowance of separate bills of cost, where the liability of defendants, if any, were several and they appeared by separate attorneys and filed separate demurrers.
Appeal from an interlocutory judgment, entered on orders sustaining demurrers interposed severally by defendants to the complaint. .
John Brooks Leavitt, for app’lt;
John M. Bowers and Charles N. Harris, for resp't Belmont;
H. V. N. Philip, for resp’t Chandler.
As we view this case, there is little which may be added to the opinions delivered at special term upon the questions raised by the demurrers. The main and vital question was wdiether an individual acting under color of right as a public officer could be held personally in an action for damages resulting •to a party accepting a contract proposed by such assumed officer, in the absence of any element of deceit, where, through the latter’s mistake as to his powers, the corporate body failed to become bound. The law is well settled that in such a case the principles governing the liability of a private agent do not apply, the primary reason being that the individual contracting for his personal gain should be required to determine the actual scope of the au
p. 837thority assumed by the officer, since the restrictions upon the authority are necessarily matter of publicity, and the rule is founded upon legitimate grounds of public policy. The plaintiff urges that these demurrants, had they acted in quorum of their committee, would then, and then only, have brought themselves within this rule; but as to that it may be said that, under the public statute in question, whether these individuals acted in quorum or not, the municipality—the ostensible principal—could not have been, bound. Since the action taken by the defendants was, in so far as appears, under an honest mistake as to their public capacity, without an intention that there should be any personal liability, a cause of action is no more apparent upon this ground. The complaint is not framed as tendering issues ex delicto.
An appeal from the orders made at special term, allowing a bill of costs in the case of each demurrant, is also before us; but in view of the nature of the action, wherein such defendants would, if liable at all, be. liable severally, the determination in this regard as to their diversity of interest was sufficiently justified, and the right of costs, since there was an appearance by separate attorneys, was properly upheld. Railroad Co. v. Burkard, 40 Hun, 625 .
The judgments and orders appealed from are to be affirmed, with costs, with the usual leave as to amendment of the pleading.
All concur.- -