70 N.Y.S. 386 | N.Y. Sup. Ct. | 1901
From the beginning in this state towns have been deemed to be primarily political divisions of the state for the purposes of state government, as shown by the framework and scheme of state government and administration sketched by the state constitution. It followed that- as such they could not be sued any more than the state itself, for sovereignty cannot be sued in its courts without its consent. At the same time, however, they have always been “ corporate bodies ” for certain limited purposes, being so named by statute, and made capable of suing and being sued in certain specified eases only (1 R. S. 337). Because of this limitation of corporate attributes the courts have usually called them quasi corporations. As they could not be sued for claims against them, or in any case not specifically allowed by statute, a system of official audit was provided by statute for the collection of such claims. ‘
It is claimed, however, that towns are now full municipal corporations, and therefore capable of being sued in all cases of liability by them. This is said to have been brought about by the Town Law (L. 1890, ch. 509). Section 2 thereof enacts that “ a town is a municipal corporation * * * formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been or may be imposed upon it by law.” Towns are also enumerated as municipal corporations in the General Municipal Law (§1) and in the General Corporation Law (§3), passed as a part of the same general revision as the Town Law:
T do not perceive how this standing alone works any such result. It does not make towns corporations, for they have always been such by statute. It does not confer on them any new attributes ; no such words are used. At most it only classifies them and confers on them a new name. But though it does not in terms make towns suable where they were not previously suable by statute, it is claimed that it effects this result indirectly by bringing them under that provision of section 3 of article 8 of the state constitution which provides that “ all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons.” But this claim is based on the misunderstanding that towns were not corporations before the Town Law was passed, and subject to such provision. As we have seen, however, they were; and none of the eminent lawyers and judges
It is also urged that towns are made capable of suing and of being sued in all cases of liability by section 182 of the Town Law. This section only provides that “Any action or special proceeding for the benefit of a town, upon a contract lawfully made with any of its town officers,” and in other cases which are enumerated, “ shall be in the name of the town ”; and next that “Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the towm for any act or omission of its town officers, shall be in the name of the town.” Even if these provisions were new, I do not see how we could find in them any authorization of new actions or proceedings by or against towns. They simply provide that actions by or against a town shall be in the name of the town. But section 182 is not new, but only a revision and combination of several previouslv existing statutory provisions (2 R. S. 473 ; 1 R. S. 337; id. 356). In addition to these citations, others on the same head could be made from the statutes relative to overseers of the poor, highway commissioners, and possibly other officials. If the legislature’s intention was to make towns suable and capable of suing in all cases of liability, it could easily have expressed it. Instead, it obviously did no more than to revise and combine in one section the dis
It can scarcely be suggested, for instance, that the provision of section 182 that “ any action or special proceeding * * * for any liability of the town for any act or omission of its town officers, shall be in the name of the town,” was intended to create new liabilities and actions against towns, by making them generally liable for acts and omissions of town officers. It only means that any right of action or proceeding for such a liability which is authorized by statute and exists shall thereafter be brought against the town by name; it does not purport to create any new liabilities of towns for such acts or .omissions. It merely conforms the revision to the innovation in that respect which had already been made by statute in respect of rights of action against highway commissioners. To understand the provision as making towns liable generally for acts and omissions of town officers would be to put towns in a worse position in that respect than cities. The general rule which we have from the common law is that municipal corporations are not liable to individuals for negligence in respect of public duties imposed on them by the sovereign power, i. e., duties of a governmental character, for in the performance of such duties they act not for themselves, i. e., for their own profit or advantage, but only as a means or agency of the state for purposes of government; and that they are so liable only in respect of matters not of that category, and which are permitted to them for their own private advantage or emolument, such as the running of ferries or street cars, the manufacture and sale of gas, the selling of water to their inhabitants, or the ownership and management of
It will also be closely observed that only actions or special proceedings to enforce the liability of the town “ on any such contract ”, i. 6., a contract “ made with any of its town officers ” by a third party, “ or for any liability of the town for any act or omission of its town officers,” are mentioned as capable of being brought against a town. This plaintiff has no such case. He is not suing on such a contract, nor for a liability created by any such act or omission.
I am referred to the case of Kennedy v. County of Queens (47 App. Div. 250) as authorizing this action; but that was the case of a county and is not strictly in point. Besides, I may not get the full bearing and effect of that decision, for the learned opinion in the case does not seem to have been concurred in by more than two judges, as probably only four took part owing to a change in the court’s membership at about that time. Moreover, it does not seem altogether consistent with things well said in Albrecht v. County of Queens (84 Hun, 399), and it seems to be limited in a most guarded manner, and to an extent which leaves very little if any of it as binding, in People ex rel. Goodwin v. Coler (48 App. Div. 492). At all events, though it is true that counties have also always been by statute bodies corporate like towns, and are called municipal corporations in the County Law for the first time, and that'that case is therefore similar to the present one, I do not understand that it was meant that it must be applied to towns, and thereby change a system of collecting claims against towns which has existed from the foundation of the government, and which the legislature has not, it seems ■ to me, changed or intended to change. It will not do to cite the case of Freel v. County of
There was left in the codification of our town statutes, which is called the Town Law, the same provisions for town auditors and the same system of auditing claims against towns which had always existed. Some provisions were dropped in the revision and re-writing, but none that were essential to a preservation of the system. There is therefore nothing in this respect indicating a legislative intent to make towns generally suable for their liabilities.
The complaint seems to be insufficient for another reason. It alleges that the plaintiff’s claim was for $1,237.15 and that $562.05 was paid on account by the town; and judgment is prayed for the balance. As no part of the claim could by law have been paid until the claim was audited, it follows as a legal conclusion from the allegation of payment that it was audited. That being the case, no action can be maintained on the original claim, for an audit binds the parties to it the same as a judgment, until corrected or set aside on review by certiorari or otherwise, whether the audit be for the full amount or a lesser sum; nor on the claim as audited, for its collection cannot be enforced by such action, but only by a writ of mandamus to compel it to be included in the tax levy and collected and paid, the very same way as payment of a judgment has to be enforced (People ex rel. McDonough v. Supervisors, 33 Hun, 305; People ex rel. Printing Co. v. Pople, 81 Hun, 383; Albrecht v. County of Queens, 84 Hun, 399; Martin v. Board of Supervisors, 29 N. Y. 645; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. Myers v. Barnes, 114 N. Y. 317). The city of New York is an exception, its charter providing that an audit shall not be binding (§ 149).
The motion is denied,