Gardner v. Board of Health — 6 N.Y. Super. Ct. 153

Majority

p. 153

Gardner v. The Board of Health of the City of New York.

Headnote

The Board of Health of the city of New York is not a body corporate, and is not cap'able of being sued as such.

If an action can be maintained against it in any manner, it -will only lie against .the individual members of the Board, describing them by their name of office.

(Before Oakley, Oh. J., and Campbell and Paine, J. J.)

Sept. 16, 11;

Sept. 28, 1850.

This action was brought to recover compensation for extra services alleged to have been rendered by plaintiff as a ward physician in the city of New York, during the prevalence of the cholera in the summer of 1849. The answer denied that the defendants were a corporate body, or capable of being sued as a board. The cause was referred by consent of parties to a sole referee. Upon the trial, in March, 1850, it appeared in evidence that on the 2d day of June, 1849, the Board of Health of the city of New York adopted a resolution, empowering the alderman and assistant alderman of each ward, to. employ two physicians to attend upon all persons attacked with the prevailing epidemic. Under this resolution, the plaintiff was appointed one of the physicians for the 8th ward. By a previous resolution of the Board, adopted May 16th, 1849, a committee of seven from the members of the Board was appointed “ to advise with the mayor and medical commissioner, and to call the Board together whenever it should be deemed necessary.” This committee was styled the “ Sanitary Committee.” They were also empowered to establish the rate of compensation of the ward physicians, which was subsequently fixed at three dollars per diem. On the 9th of June, this committee adopted an additional resolution, that the ward physicians should visit all persons whom they might be called upon to attend in their respective wards, without respect to the nature of the disease, and that such attendance, and all necessary-medicine's, should

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be furnished to such as were unable to pay for them. Under this resolution of the sanitary committee,-the plaintiff was called ,upon to visit, and did visit, one hundred and fifty-four patients, •between the 9th of June and the 3d of September following, and in each case there were three visits. It was admitted that one dollar was a reasonable compensation for each visit. The action was instituted to recover compensation for the services rendered in pursuance of this resolution of .the sanitary committee, it being admitted that the plaintiff had been paid in full his three dollars per diem under the original resolution of the Board of Health.

Considerable testimony was introduced before the referee, in respect to the extent of the agency of the sanitary committee. .It was also attempted to be shown on the part of the defendants, that the committee did not regard the employment of the physicians ’ under the resolution of June 9th, as entitling them to additional compensation, and that it was not so regarded by the physicians themselves, who had subsequently united in a petition to the common council, for an appropriation for the additional services alleged to have been rendered. The motion to set aside the report of the referee was decided upon another point. The'nature and organization of the -Board are stated in the opinion of the court.

The referee reported in favor of the plaintiff, for the sum of four hundred and sixty-two dollars, and the defendants appealed from the judgment thereupon entered.

A. J. Willard, for the defendants.

J. M. Martin, for the plaintiff.

By the Court.

During the prevalence of the cholera in thé summer of 1849, the Board of Health appointed a committee denominated the Sanitary Committee. The Board being composed of numerous members, its duties devolved mainly upon this committee. The committee were authorized by the Board to employ physicians to attend in each ward at

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the station-houses, at a per diem allowance. The sanitary committee, in the course of their proceedings, passed certain resolutions, one of which, as the plaintiff contends, was for the employment of physicians to attend upon all the poor sick of their respective wards, without reference to the character of the-disease. The plaintiff was one of the physicians thus employed. Upon a settlement of the account of tbe plaintiff with the defendants, a dispute arose as to the charges for attendance in cases other than those of cholera. The items for attendance on cholera patients were allowed, hut the others were not. There is no dispute in this case, as to the services rendered, nor as to the correctness of the charges.

This action is brought against the Board of Health, eo nomine, treating them as a corporate body. The first question which arises is, Is this Board such a corporation? A very extended argument was gone into on both sides, as to the character, powers, and duties of the Board. It is an old institution, but it received a separate and distinct organization by the revised statutes of 1880. Under this, the common council had the power of appointing the members of the Board, and by an ordinance for that purpose, it was declared that it should be composed of the aldermen and assistant aldermen of the city. We cannot find that this Board is anywhere created a body corporate by express terms of law, nor can we perceive that it has any of the features of a corporate body. ' It has no succession, no seal, and no funds. It is organized by the city corporation under the laws of the state, and may be changed as to its members at the pleasure of the common council.

The counsel for the plaintiff has pressed upon our notice a class of cases, under which it is contended this Board may be considered as a quasi corporation, and it has been likened to the cases in which suits have been brought by and against overseers of the poor. But in all such cases, the actions are instituted against the individuals themselves, describing them by their name of office, and not against them as a corporate body. We are also referred to a section of the statute, the purport of which is, that no action brought by the Board of Health, and by over

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seers of the poor, shall abate by reason of the death of any one of its members, and it is said, that if the Board can sue, it is to be inferred- that the legislature clearly contemplated they could also be sued. We think that this clause of the statute is misunderstood. If it were intended to authorize the Board to sue as a corporation, in its corporate name, the provision that a suit shall not abate by the death of any of its members is entirely senseless and unmeaning. That can only apply to actions brought in the name of the individuals composing the Board, and in this respect, the Board is like the overseers of the poor, who must always sue in their individual names.

Our conclusion is, therefore, that no action can be brought against the Board as a corporate body; and this point being conclusive against the plaintiff’s right of recovery, it is not necessary to consider several other questions involved in the case.

The judgment at the special term must be reversed, and the complaint dismissed.