53 N.Y.S. 679 | N.Y. Sup. Ct. | 1898
In an action against the city, the corporation counsel, deeming a defense impossible, made an offer of judgment for less than half the claim, upon which being accepted, the judgment in controversy was entered. The contention of the comptroller is that, without his concurrence, an offer of judgment is not within the competence of the corporation counsel. It is a cardinal principle of the American commonwealth that public officers act by a delegated authority; and I am to determine from the provisions of the city charter, whether it confers the power in question upon the corporation counsel. It is not pretended that the power is imparted in exact terms, but it- may be comprehended as a unit in .the sum of authority communicated. Concession of the whole is necessarily a concession of every part. By section 255 of the charter it is provided that “ The corporation counsel shall have charge and conduct of all the law business of the corporation and its departments and boards and of all law business in which The City of Hew York is interested.” He is to be the legal adviser «of all departments and officers, who are forbidden to employ any other attorney or counsel. An offer of judgment is a recognized and regular step in the progress of a lawsuit (Code, § 138), and, as the paper shows, authority to make such offer is essential to save the city from enormous expense in futile defenses. Since, then, the exclusive control of the litigation of the city is devolved upon the corporation counsel, it must be that each and every incident of a litigation is subject to his discretion. To the objection that the attorney of a private litigant may not, without special authority, make an offer of judgment, the answer is that the analogy of such case to that of the corporation counsel is too imperfect to warrant a deduction from the one to the other. The one is employed to prosecute or defend a particular action; the other is to have the care 'and conduct
Ordered accordingly.