124 N.Y.S. 282 | N.Y. App. Div. | 1910
Lead Opinion
Plaintiff is an attorney, and his recovery in this action is for services as counsel of a committee of defendant’s common council in an investigation made by such committee.
On the trial defendant conceded that its common council duly adopted a resolution which, after reciting the occasion of and necessity for the investigation, directed the president of the common council to appoint a committee, with power to employ counsel, if necessary, to make such investigation and report thereon. It was also conceded that five members of the common council were thereafter duly appointed as such committee and that the committee pursuant to the resolution employed plaintiff to conduct the investigation, and that he acted as counsel for the committee therein. If the committee had authority to employ plaintiff, defendant does not question his right to the judgment he has obtained.
It- would seem that defendant by conceding that the resolution directing the appointment of a committee with power to employ counsel was duly adopted by its common council; that this committee was duly appointed, and that it employed plaintiff as its counsel, has precluded itself from questioning the authority of the committee to employ an attorney, which it seems to have conceded was duly conferred. But whether that is the legal effect to be given to these concessions or not, we think the committee had such authority. Every point now urged by appellant’s counsel in opposition to the claim that the committee had such authority, except
The statute under which defendant is organized (Laws of 1904, chap. 300), which for convenience of reference may be called its charter, gives the common council power to make such investigation as that in question. The charter also, by implication at least, authorizes such investigation to be made by a committee of that body appointed for that purpose. (§§ 136, 141.) If the common •council had either the express or implied power to employ counsel to assist it in making such an investigation, it is not questioned that a committee duly appointed to make the investigation for the council could, if authorized by the council, employ an attorney to assist in the investigation. Unless prohibited by the charter the common council has, as an incident to its general power, the authority to employ counsel, if necessary, to assist it in the due performance of the duties or trusts with which in its corporate capacity it is charged by law. Defendant.does not question that proposition; nor does it question that the committee needed the aid of counsel in making the. investigation, but it does urge that the corporation-counsel was by section 483 of the charter made the solé legal adviser for the city’s officers, its departments, its common council, and committees, and was, therefore, the only counsel whose-services could be employed.
Section 483 reads as follows : “ The corporation counsel shall be . and act as the legal adviser of the common council and of the several officers, boards and departments of the city, and he shall appear for and protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department, and such officers, boards or departments shall not employ other .counsel.”
It is further provided by section 65 : “No member or committee
The common council by its resolution under which its committee was appointed, by implication, at least, determined that a condition was presented in which the necessity for employment of counsel other than the corporation counsel was presented. The investigation the committee was to make involved an inquiry as to the management and conduct of the police department and of the office of police justice, which had resulted in a condition of antagonism between the two departments, by reason of which, as the resolution recites, the administration of justice in criminal matters was seriously interfered with. Two of the city’s departments were to be investigated. Acting under the provisions of the chartei-, the corporation counsel had been, during the time in which this unfortunate condition of antagonism between the two departments "arose, the legal adviser of the mayor of the city, who was president of the police board, and through him of the police department. The corporation counsel was, as the charter provides; appointed by the mayor, and was subject to removal- by that officer upon specific charges after a trial. (See § 16, subd. .2; Id. § 31.) If the corporation counsel had attempted to discharge in this investigation all of the duties with which in the event he appeared as corporation counsel
It is in no sense nor in any way a reflection either on the ability, integrity, or the personal or professional conduct of the corporation counsel, that the committee properly, as we think, decided that it was necessary to have an attorney other than the corporation counsel to act as its legal adviser in the investigation. This action of the committee, under the circumstances, does not appear to have been .intended to, and in fact did not, involve any criticism of the corporation counsel, his attitude or actions. Indeed, so far as the record discloses, he very properly refrained from asserting any claims to act as the committee’s legal adviser. The determination that it was necessary to employ other legal assistance than that afforded by the charter was the exercise of a quasi judicial function well within the power of the common council and its committee, and no good reason appears for questioning its result.
It is to be understood, however, that it is only under exceptional circumstances, such as are here presented, that the common council has the right to exercise the power here approved.
The judgment should be affirmed, with costs.
All concurred, except Kruse, J., who dissented, in a memorandum.
Dissenting Opinion
The plaintiff’s employment as counsel to the investigating committee was in direct contravention, as it seems to me, of the provisions of the defendant’s charter, which prohibits the officers, boards or departments of the city from employing other counsel than the corporation counsel. While I do not question the right of the common council to employ other counsel if for any reason the
Judgment affirmed, with costs.