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Leveridge v. Mayor of New York

5 N.Y. Super. Ct. 263 3 Sandf. 263 Court N.Y. Super. Ct. Decision date 1849-10-20 English

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Leveridge v. The Mayor, Aldermen, and Commonalty of the City of New York.

Headnote

The corporation of the City of New York, having a large number of litigated suits, and in those suits, and in its other affairs, requiring the constant aid and attendance of counsel, the common council enacted a stated ordinance creating the office of corporation counsel, requiring the incumbent to be a counsellor at law in the supreme court, and making it his duty to advise the common council, their committees, and officers, on legal questions arising in their business, and to perform all such services in the line of his profession, connected with the business of the corpozation, as were not comprised in the duties of. the corporation attorney. The ordinance provided him with an annual salary. Theplaintiff was appointed corporation counsel under this ordinance, and by resolution, all suits pending at that time were placed in his hands, and he assented to the transfer by accepting the same. He was paid the annual salary provided. In a suit brought by Mm against the corporation,
Meld, 1. That he was entitled to recover Ms taxed costs as attorney and solicitor in the suits conducted by him for the corporation.
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2. That the ordinance in question embraced services rendered by the plaintiff as counsellor, in the trial and argument of all causes, whether at law or in equity, in which the corporation was interested ; also, all services rendered by him in the drawing of special contracts, memorials, &e.; such services being “ in the line of his profession, connected with the business of the corporation.” And that for those items he was not entitled to recover.
3. That for services rendered by the plaintiff in the defence of suits in which the city was not interested, he could not recover ; even though such suits had been referred to him by the common council; there being no special retainer of the plaintiff in his professional capacity, aside from his official duty as corporation counsel.
4. That the attendance of the plaintiff before the legislature, at the request of the officers of the corporation, in reference to measures in which the city was interested, was not a part of his duty as corporation counsel; and that for such services he was entitled to recover.
The soliciting and opposing the passage of bills brought into the legislature, is not “ a service in the line of the profession of a counsellor at law.”
(Before Oaklet, Ch. J., and Vajtoerpoel and Samdpord, J.J.)
Sept. 25,26;
Oct. 20, 1849.
This was a motion to set aside the report of referees. The action was brought to recover an amount alleged by the plaintiff to be due from the defendants to him, for professional services as an attorney and counsellor at law.
By an order of the court, the cause was referred to Ogden Edwards, William Kent, and Alvin C. Bradley, Esqrs., counsellors at law, to hear and decide the same. Hpon the hearing before the referees, it was admitted by the counsel ibr the defendants, that the plaintiff was duly appointed corporation counsel on the 16th day of May, 1844, and that at that time he was an attorney and counsellor of the supreme court, and solicitor and counsellor in chancery. A bill of particulars was furnished, by which it appeared, that the plaintiff’s claim was for taxable costs as attorney and solicitor, in a large number of suits prosecuted or defended by him in the various courts ; also for counsel fees on the argument and trial of causes in the courts of justice; also for counsel fees in the trial of causes to which the city was not a party, hut the defence of which had been assumed by a resolution of the common council; also for the drawing of sundry contracts, conveyances, laws, and memorials, relative to the business of the city, and for attendance at Albany during the session of the legislature, in reference to certain measures pending
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before that body, in which the city was interested, and at the request of the corporation.
Under the first head, the plaintiff read in evidence the several taxed bills of costs, with proof of service of notice of taxation. It was then proved that the suits mentioned in the bills of costs, were either those in which the plaintiff had been substituted in place of the former counsel of the corporation, under a resolution to that effect, adopted by the common council, or which had been commenced by or against the corporation while the plaintiff was counsel. Under the second head, the plaintiff proved services rendered by him as counsel in the trial and argument of various causes, in which the corporation was a party, in the different courts of law and equity, and the reasonableness of the charges in the bill of particulars. It also appeared that the plaintiff had rendered services as counsel in four suits, at the request of the common council, expressed by resolutions adopted by them for that purpose, in which suits the corporation was not a party, nor in any wise interested pecuniarily. The titles of these causes were Fleetwood v. Quin; Reed v. Benson and others; Cahill v. Williams; Goldsmith v. Rawson. The reasonable character of the charges rendered was also established by the evidence adduced. Under the fourth head, the plaintiff proved the drawing of a large number of contracts, memorials, conveyances, &c., and that the charges for these services as contained in the bill were fair and reasonable charges. Under the last head, the plaintiff proved that he was in attendance at Albany three weeks during the session of the legislature, at the request of some of the principal officers of the corporation, in opposing the application of the city of Brooklyn relative to the ferries, and also in reference to several bills pending before the legislature in reference to alien passengers and other matters, in which the city of New York was interested, and that the charges rendered by him for these services were reasonable. Among the counsel fees, there was one charge of $100, for a counsel fee in an arbitration in the case of Mrs. Flanders, which was tried subsequent to the expiration of the plaintiff’s term of office.
The defendants’ counsel read in evidence from a printed volume of the revised Ordinances of the city, (a.d. 1839,) chap.
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IV., title 1 and 2, relating to the counsel and attorney of the corporation. These provisions are set forth at length in the case of Brady v. The Mayor, áse. of New York, 1 Sandf. Rep. 569 , and it is deemed unnecessary to incorporate them here. It is provided by these ordinances, that a suitable person, of the degree of counsellor at law of the supreme court, shall be appointed corporation counsel, whose duty it shall be to advise the common council, and their committees and officers, on such legal questions as may from time to time arise in relation to the business of the corporation; “ cmd to perform all such othe/r services m the Imeofhisprofession, connected with the business of the corporation, as are not comprised in the duties of the corporation attorney.” The duties of the corporation attorney are prescribed as follows:—To commence and prosecute all suits arising under .the charter of the city, and all actions upon the laws of this state, in cases where the penalty is given to the corporation, or to the overseers of the poor.
The defendants’ counsel also read in evidence an ordinance of the common council, adopted May 29, 1844, by which the salary of the corporation counsel was fixed at $2000 per year.
It was contended on the part of the defendants, that the salary thus provided, was in full payment of all services performed by the plaintiff. That those services were a part of his official duties as corporation counsel. On the part of the plaintiff, it was contended, that the ordinance of the 29th May, 1844, by which a salary of §2000 was allowed, and directed to be paid to the plaintiff, did not embrace the services rendered by him as counsel on the trial or argument of causes in courts of justice. That these services were not any part of “ the business of the corporation,” within the meaning of the ordinances. And further, that the ordinance could not be applied to services rendered in suits in equity, because the ordinance did not require a person to be either of the degree of solicitor or counsellor in chancery, to fill the office of corporation counsel. That as to the services rendered by the plaintiff in the four suits to which the city was not a party, but where the defence was voluntarily assumed by the corporation, the ordinance did not apply. And that the services rendered by the plaintiff in the drawing of special con
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tracts, memorials, laws, &c., and in attendance upon the legislature, these not being peculiarly or properly within “ the line of his profession,” were a proper charge against the corporation.
The referees reported that the plaintiff was entitled to recover the amount of his taxed bills as rendered, being the sum of $6,299 65; also for his services before the legislature, the sum of $500; his counsel fees in the suits of Fleetwood v. Quin, Eeed v. Benson et ah, Cahill v. Williams, and Goldsmith v. Eawson, in all $300 ; and his counsel fee upon the arbitration in the case of Mrs. Flanders, $100, mating in aE $7,199 65. But that he was not entitled to recover for counsel fees in the ordinary suits and proceedings, or for any services as counsel, as claimed in his biE of particulars, with the exceptions of the four. suits mentioned, and the case of Mrs. Flanders, on the ground that he was paid and compensated for all such services by the salary provided in the corporation ordinance.
The defendants moved to set aside the report; and by consent the points which the referees ruled against the plaintiff were discussed on the motion.
E. Scmdford, for the plaintiff.
F. B. Outbmg, for the defendants.

We wiE first examine the plaintiff’s objections to the report of the referees.

1. He claims that the ordinance did not embrace the services rendered by him as counsel, in the trying or in the argument of causes in which the corporation of the city was interested in the courts of justice.

The language of the ordinance is too plain to admit of any doubt on this point. It makes it the duty of the counsel to perform all such services (other than those previously enumerated) m the lime of his profession, connected with the business of the corporation, as are not comprised in the business of the attorney. The trial and argument of the lawsuits of the corporation, are connected with their business; those duties are in the line of the profession of a counseEor at'law, and they are no part

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of the business of the corporation attorney. It seems to us that no reasoning, however ingenious, can impair the force of this plain statement. As to the argument sought to be drawn from the fact, that the duty of arguing causes often required the counsel to attend courts held at a distance from the city of Hew York, and from the expenses consequent upon such attendances ; we answer, that his time being paid for by his salary, it is indifferent to him whether he performs his duty in one place or in another. He voluntarily assumed the duty, and must discharge it, wherever, in its regular course, it may happen to call him. His expenses on such attendances are a proper charge against the city.

The ordinance was in force when the plaintiff was appointed. There is therefore no room for argument on the score of the inadequacy of the compensation.

In respect of the great mass of litigated suits transferred to him from his predecessor, after he entered upon the discharge of his duties, it suffices to say that if that were business which he did not undertake or contemplate when he accepted the office, he should have, either refused to receive the transfer, or resigned. Those suits were a part of the business of the corporation, and his acceptance of the transfer evinced his assent that they were within the duty he had assumed as corporation counsel. It is quite probable, from the testimony in the case relative to the taxed costs, that the plaintiff’s cheerful discharge of his duty in receiving these transferred causes, received a fit and reasonable reward in that shape.

2. The plaintiff’s next point asserts his right to recover conn- ■ sel fees in the suits in equity, because the ordinance did not require the corporation counsel to be a solicitor or a counsellor in chancery.

The ordinance provides that “ a suitable person of the degree of counsellor at law in the supreme court, shall be appointed as counsel to the corporation.” This simply prescribed a qualification for the office; it did not define or limit its duties. The defence of a suit in equity, is as much the business of the corporation, as is the defence of a suit at law; and the counsel to the 3 0 3 corporation, in arguing a chancery suit, is performing a duty

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directly imposed upon Mm by the ordinance. If he were incapable of arguing in chancery, by reason of his never having been admitted as a counsellor in that court, it might have rendered it necessary for the corporation to employ another counsellor for that specific purpose, or to remedy the difficulty by removing the incumbent altogether. If the plaintiff were qualified to practise as counsel in that court, his arguments there for the corporation, were in their business, in the line of his profession. "When the ordinance was adopted, there were four or five courts of record in this city, besides the supreme court, in each of which an admission to practise as counsel was necessary, in order regularly to try or argue causes in such courts respectively. The city was exposed to be sued in all of those courts, and the argument for the allowance of counsel fees in smts in this court, in the common pleas, and in the United States courts, is as strong as it is in favor of allowing such fees in the suits in chancery. The qualification of “ counsellor at law in the supreme court,” was inserted in the ordinance as prescribing that degree of professional standing which entitled a lawyer to practise, if he chose so to do, in all the courts in the state. The business which he was to transact as counsel for the corporation, was to be in the line of his profession as a lawyer of the degree of counsellor; not merely the business of the city in the supreme court.

3. The plaintiff claims to recover compensation for drawing various special contracts, conveyances, laws, and memorials, on the ground that these were services which others could perform, who were not lawyers, and therefore they were not “ in the line of his profession.” The answer to this is, that these services are generally performed by lawyers; they are appropriate to that profession, and not to any other; they were rendered by the plaintiff as corporation counsel, and they were “ connected with the business of the corporation.”

We now come to the objections taken to the report by the defendants.

1. The point as to the taxable costs, we decided against the corporation, in Brady v. The City of New York, 1 Sand. R. 569.

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2. The referees allowed to the plaintiff three hundred dollars for attending at Albany, and opposing, in behalf of the city of Hew York, the application of the city of Brooklyn for legislation adverse to the ferry rights of the former city; and two hundred dollars for like attendance upon the legislature relative to several laws applied for by the city of Hew York.

The defendants contend that these duties were connected with the business of the corporation; and if they were not, then the city is not liable at all, there-being no special retainer pretended, nor any contract other than the plaintiff’s general employment under the ordinance.

Although we agree that these matters were the business of the corporation, we think they were not within the Ene of the plaintiff’s profession. The soliciting and opposing the passage of biffs brought into the legislature, do not form a part of the business of counsel, and generally those services are performed by persons who are not lawyers. In many instances, no doubt, lawyers are properly and advantageously employed, because of them superior practical mental training, and them professional facility in investigating, collating, and presenting facts and arguments, bearing upon important subjects connected with legislar tion. Stiff, this is not a professional duty, and the caffs for its discharge by members of the bar are not usual nor frequent. We therefore are clear that the services in question were not a part of the plaintiff’s duty as corporation counsel. The referees have decided that they were not gratuitous, and we think the evidence fully sustains that conclusion. He attended at Albany, on the request of the leading corporation officers, charged with the important interests involved; and the city had the benefit of his services. It is said he was called on because he was corporation counsel, and as such counsel only. This is true in the sense that he was selected for this duty, in preference to any other lawyer, or individual equally capable; because at the time he filled the office of counsel to the corporation. We do not think it is true in the sense that he was employed to perform the service as a part of his duty as corporation counsel, for which he was paid by the salary stipulated in the ordinance. The report of the referees as to these items is sustained.

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3. Among the counsel fees allowed, which were objected to, is one on an arbitration with Mrs Flanders. This item occurred after the plaintiff ceased to- hold the office of-corporation counsel, and it is unquestionably a proper charge.

4. The counsel fees allowed- by the referees in the four suits against Quin, Benson and others, Williams, and Rawson, remain to be considered.

The city was not a party in either of these suits, nor under any legal obligation or duty to defend them. The omission to defend them could not involve the city in any loss ; nor could an adverse result, upon a defence interposed. We agree, therefore, with the plaintiff’s counsel, that the defence of these suits was not “the business of the corporation,” prior to the respective resolutions on that subject; and the plaintiff was not obliged to defend them as a part of his duty as corporation counsel.

Did the resolutions, referring Quin’s suit to him with power, authorizing him to defend the suits of Williams and Rawson, and requesting him to defend that of Benson and others, alter the state of the case in respect of the plaintiff’s obligation, or that of the corporation?.

If it were proper for the city to defend those suits, their defence, upon the adoption of the resolution, became the business of the corporation, which the plaintiff was bound to undertake by virtue of his official station. If it were not the proper business of the city to defend them, the plaintiff, as them legal adviser, must be presumed to have known it, and he should have so advised them, and declined to act, unless on a representation of his opinion and views, the corporation had expressly undertaken to pay him the expenses of the defence.

It is questionable whether it was competent for the corporation, even by such a resolution, to make itself liable for expenses incurred in defending lawsuits in which it had no interest. We refer to Hodges v. The City of Buffalo, 2 Denio 110 ; Brown v. The City of Utica, 2 Barb. R. Sup. Court, 109; Halstead v. The City of New York, in the supreme court in this district, November, 1848, reported in 7 N. Y. Legal Observer 74[1] ;

(a) (a) S. C. in the court of appeals, 3 Comst. 430.

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and Cornell v. The Town of Guilford, 1 Denio 510 ; as illustrating the limits to municipal authority in this respect.

We need not, however, decide the question of power. The resolutions adopted, evidently referred these defences to the plaintiff, as being the proper business of the corporation. There was no special retainer of the plaintiff in his professional capacity, aside from his official duty. All this he knew, or was bound to know, from the resolutions, and the ordinance which defined his functions; and his act in proceeding to defend the suits without objection, and without requiring a special retainer, was an assent to receive and treat them as a part of the business of the corporation, within his line and duty as an officer, which he cannot now recall.

In our opinion, these four items were improperly allowed by the referees, and they must be deducted from the sum reported to be due to the plaintiff. On his consenting to such deduction, the defendants’ motion to set aside the report will be denied.

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