Nash v. Mayor of New York — 6 N.Y. Super. Ct. 1

Majority

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

Headnote

The public administrator of the city of New York is the agent of the corporation of the city, which is liable as principal for his acts within the scope of his authority.

The corporation is therefore liable to an attorney employed by the public administrator, in suits brought by and against him, for the costs of such suits.

(Before Doer, Mason, and Campbell, J. J.)

March 12;

April 20, 1850.

This was an action of assumpsit, tried before the Hon. S. B. Strong, one of tbe justices of the supreme court, without a jury, February 19th, 1848. The following fácts were admitted upon the trial:—

The ■ plaintiff was retained by Eber Wheaton as public administrator, in October, 1835, to ■ prosecute a suit against Philip McCahill, and .the costs of the plaintiff accrued in that suit were taxed in 1847, at one hundred and three dollars and sixty-two cents. There is now a judgment of record in the suit, in favor of the public administrator, for damages and for those costs. The plaintiff was retained by Elisha Morrill, public administrator, to defend a suit brought against him as such,

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by James Mowatt to recover a fund amounting to $1375, which had been received by the public administrator from the estate of John E. Mowatt, and a judgment for costs was rendered in favor of the administrator. The costs of the plaintiff incurred in and about the defence of that suit were taxed in 1847, at one hundred and five dollars and twenty cents. The plaintiff was retained as attorney by Alpheus Sherman, as public administrator, to prosecute a suit instituted by him against Silas Sutin and others, and the costs of the plaintiff incurred by him in and about the prosecution of that suit were taxed in 1847, at two hundred thirty-three dollars and ninety-six cents.

Nothing has been received from either of those suits, prosecuted by the public administrator, by the city, or from the estates on account of or against which they have been prosecuted. No suits have been brought or prosecuted against the public administrator by the plaintiff, for those bills of costs or for any one of them.

The counsel for the defendants moved for a non-suit on the following grounds: — 1. That the public administrator is not an officer of the city of New York, and it is not therefore liable in the first instance for his acts or omissions. 2. That the plaintiff has shown no claim against the city of New York. 3. All the responsibilities of the corporation, for or on account of the public administrator, are specified in 2 R. S. 127, § 43, 42; and the responsibility now sought to be imposed upon them is not embraced in those sections. 4. The responsibility of the city (if any), in this case, is only secondary. No suit can be maintained against the city until the remedy against the public administrator is first exhausted.

The judge overruled the motion for a non-suit; and directed judgment to be entered for the plaintiff, for four hundred and forty-two dollars and seventy-eight cents, subject to the opinion of the court on a case. The cause was transferred to this court.

A. Nash, plaintiff in person.

W. Kent, for the defendants.

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By the Court.

This action, was brought by the plaintiff to recover the amount of several attorney’s bills of costs in suits in which the public administrator of New York was either plaintiff or defendant, and the plaintiff -was employed as sueh attorney, to prosecute or defend, and he now claims that the corporation of New York is directly and primarily liable to him for such costs. The cause was tried before Mr. Justice Strong of the supreme court, without a jury, and a verdict rendered by him in favor of the plaintiff for the amount claimed, and is now before us on motion for new trial on a case made. t

Prior to 1815, the chamberlain of the city was constituted the public administrator. In that year, the mayor and aider-men petitioned the legislature for the passage of an act giving to them the power to nominate and appoint a person public administrator; which petition was granted, and they were authorized to appoint, under the common seal of the city, such public administrator. By that law, this officer was authorized to retain five per cent, commission on the estates, for his compensation, and the city was made responsible for .the due administration of the estates, as he held his place at the pleasure of the common council. It does not appear, however, by that law, that the city had any interest in the commissions, the benefit to the corporation being, in holding without interest, the funds of such estates as should remain unclaimed at the expiration of eighteen months.

By the revised' statutes material alterations were made. The salary of the public administrator is now to be paid by the city, and the corporation receives the commission of five per cent., and continues the depositary of’the unclaimed funds. The administrator also gives a bond in the penalty of ten thousand dollars, directly to the mayor, aldermen, &e., conditioned for the faithful discharge of his duties, among which duties is that of paying over, within two days after the receipt thereof, to the credit of the comptroller, jointly with himself, all moneys derived from any estate which may come into his hands. Though the statute declares that he may sue or be sued, the

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same as any other administrator or executor, it would seem that he must do so at his own expense, unless the corporation, which takes the commission and the funds, be liable. By the 42d and 43d sections, (2 R. S. 128,) the' city is made liable and responsible for all moneys received by the public administrator, and for the faithful execution of his duties; and it is declared, that all persons aggrieved by any unauthorized acts or omissions of such-public administrator, may have the same remedy against the corporation of New York, that they could have against any executor, and further for the protection of the corporation, they are authorized to make such rules and regulations for his government, as they may from time to time deem necessary.

After a careful examination of the law, we have come to the conclusion that it would be difficult to find a more complete case of agency than this: The public administrator, first, is appointed by the common council, and is removable at their pleasure. Second. He gives a bond directly to them, for the faithful discharge of his duties. Third. The emoluments of the office are paid directly into the treasury and belong to the corporation. Fourth. The corporation, from time to time, as they may deem necessary, may make rules for his government.

Now if the 24th section, and the 43 d section were struck out altogether, we are inclined to think the corporation would be equally liable for the acts of their agent. He may sue and be sued as any other administrator. It may often become his duty to prosecute or defend suits. An omission or neglect to do so, might be a neglect or omission of duty, for which he or his bondsmen might be liable. It may be greatly for the benefit of his principal, the corporation, that he should do so. He thereby may preserve or secure a fund, out of which commissions are to accrue, and by which their treasury is increased.

It would seem but reasonable, that the attorney thus employed to prosecute or defend these suits, should be entitled to recover his costs directly from the principal. If the corporation choose, they may limit the power of their agent by rules or regulations adopted in pursuance of the 44th section. By not making such

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regulations, they leave the matter to his discretion. They may require that no suit be prosecuted or defended, except by express authority given by them in each particular case, or except Tinder the sanction of the corporation counsel. It does not appear that any such rules or regulations have been adopted, and it not appearing but that these suits were prosecuted and defended by the several public administrators in entire good faith, and in what they conceived to be an honest discharge of their duties, and for the interest of the corporation, we are of opinion that the verdict rendered before Mr. Justice Strong, was in all respects correct, and that the motion for a new trial must be denied with costs.