87 N.Y.S. 144 | N.Y. App. Div. | 1904
The plaintiff brought this action against the defendant, alleging that “on or about the seventh day.of June, 1903, the defendant, without justification or provocation, wilfully, maliciously and violently struck and beat this plaintiff on the head, face, mouth, with a club, and kicked him about his body, whereby this plaintiff was seriously bruised and injured to his damage in the sum of two thousand (2,000) dollars.” The defendant, who appears to have been a member of the police force of the Greater New York, answers, by his attorney, George L. Bives, corporation counsel, and this answer was accepted under protest and with a denial in writing of the right and authority of the corporation counsel to appear in behalf of the defendant. Subsequently the plaintiff secured an order to show cause, directed to George E. Blackwell,, assistant corporation counsel in charge of the corporation counsel’s office in and for the borough of Queens, at Long Island City, why the appearance of the said George L. Bives should not be set aside and be stricken from the pleadings and all papers in the action, and why the defendant should not defend the action in person or by an attorney other than the said George L. Bives or any of his assistants. Upon the return of this order to show cause the Special Term granted an order setting aside the appearance of the corporation counsel, and from this order the defendant and the corporation counsel appeal.
The appellants urge that the defendant was a police officer of the city of New York, and that he, on June J, 1903, in the proper performance of his duty as an officer, placed plaintiff under arrest; that the plaintiff was subsequently tried, convicted and fined for the offense for which defendant arrested him, and that said arrest constitutes the alleged cause of action as set forth in plaintiff’s complaint, and it is insisted that there is special statutory authority for the appearance of the corporation counsel in behalf of this policeman. It may be observed in passing that the plaintiff does not
Does the revised charter authorize the appearance of the corporation co unsel in defense of a policeman who is charged with an assault ? Section 255 of the revised charter (Laws of 1901,; chap. 466) provides-that there shall be a law department of the city of New York, the-head whereof shall be called the corporation counsel, who shallbe-the-attorney and counsel for the city of New York, the mayor, the board, of aldermen and each and every officer, board and department of said, city, and he “ 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 New York is interested, except as-otherwise herein provided.” The “law business in which the*
Tried by this test can we reach the conclusion that the Legislature, by the Use of the general word “ officer,” intended to include subordinates in all of the departments; that it intended the corporation counsel should become the adviser and counselor of every one. of the thousands of policemen on the force, even in matters of purely private concern ? The question suggests its own answer, and makes further, discussion unnecessary. The word “ officer,” as used in section 255 of the revised charter, clearly related to those officers who were on the same general footing as the mayor, board of aldermen, borough presidents, boards, departments, etc., and not to the subordinate officers, which is, within the principle of the rule, often asserted in the construction, of wills, that when certain things named are 'followed by a phrase which need not but might be construed to include other things, it will be confined to articles of the same general character as those enumerated. (Matter of Reynolds, 124 N. Y. 388, 397, and authorities there cited.) That it did not contemplate personal .service of the officers is shown by the fact that he is to counsel the board of aldermen, not individually, but collectively, and this is true of the departments and of the boards, and the fair construction of the section is that the corporation counsel is to have charge of the legal affairs of the city in its corporate capacity, including the various departments and officers, who are engaged in matters in which the city as such has a legal
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.