In re the City of New York

112 A.D. 160, 98 N.Y.S. 331, 1906 N.Y. App. Div. LEXIS 624

Opinion

McLaughlin, J.:

Proceedings were instituted by] the city of New York to acquire title to certain lands on Amsterdam avenue, between One Hundred and Thirty-ninth and One Hundred and Fortieth streets, owned by the respondent Baker. After the commencement of such proceedings an offer was made under section 1436c of the Greater Mew York charter

* to sell this "land to the city for the sum of $110,000. The offer was dated January 9, 19.05, and was signed “John O. Baker by Joseph A. Flannery, his attorney.”. • The offer was rejected and title subsequently acquired by the city,.for which an award was made to Baker of $111,000. Thereafter a motion was made on behalf of Baker, under section 1436c of the Greater Mew York charter, to tax his costs in the proceeding and. for an extra allowance. This section provides, among other things, that “ In all cases where the owner of lands selected as aforesaid, or any part thereof] is not under legal disability to convey title to real property, such owner may, at any time before proof of value is submitted to the commissioners * * * submit a written offer tó the board of estimate and apportionment to sell and convey such owner’s land' or .interest therein at a specified price. * * * If such written offer is not accepted before proof of value is Submitted, * * * provided ten days shall have lapsed from the time of making such offer, and the compensation awarded thereafter ^* ,*. * exceeds the price specified in such offer, such owner making such offer shall be entitled to his taxable costs and disbursements as in an action and in the discretion of the Supreme Court, upon application made at a Special Term thereof, to an additional allowance of a sum of .money not exceeding five per centum upon the amount of such offer, but in no event more than two thousand dollars.”

The motion was granted and the costs directed to be taxed as in an action, together with an extra allowance of $500,, and the city - has appealed.

To entitle the owner of land, which is proposed to be taken by the city, to costs under the section of the charter referred to, he must make a written offer to sell at least ten days before proof is given as to the value of the land, and then the amount awarded must be in excess of his offer.

Here, the award, it is true, was in excess of the offer, but the offer did not comply with the section of the charter nor come within its provisions. It was not made by Baker, the owner, but by one who represented himself to be’ his attorney. The section does not provide for an offer by an attorney, but by the owner of the land, and while I am of the opinion that an attorney can make a valid offer under this section; he can only- do so by presenting proof at the time -the offer is made that lie is in fact the attorney of,' and has been authorized by, the owner to make the offer. The section clearly contemplates that an offer when made shall be in-such form that if accepted by the city it can be enforced by specific performance or otherwise; and this . offer' could not have been enforced because there was no proof presented that Flannery, had any authority to make if. An attorney ordinarily has no implied power to bind his client by contract (Bogart v. De Bussy, 6 Johns. 94), and a general retainer does not authorize him either to sell or purchase property (Averill v. Williams, 4 Den. 295), or release, compromise or settle a Cause of action (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628), or to satisfy a judgment without full payment (Mandeville v. Reynolds, 68 id. 528; Arthur v. Homestead Fire Ins. Co., 78 id. 462), or to make an offer of judgment (Bush v. O'Brien, 164 id. 205 ; Riggs v. Waydell, 78 id. 586; Stone v. Bank of Commerce, 174 U. S. 412). In the Bush ease it was held that the corporation counsel of the city of New York had no power, either by virtue of his retainer or Under the charter of 1897 (Laws of 1897, chap. 378, § 255), to make an offer of judgment in ah action against the city. With the previous written approval of the comptroller, or the mayor and comptroller, he is expressly given such power under the charter of 1901 (Laws of 1901, chap. 466, § 255). In the Riggs case it was held that an offer of judgment signed by the defendant’s attorney, to which, no. affidavit .showing his authority to make it was annexed, was invalid.

If an attorney in an action cannot make an offer of judgment without proof of his authority; much less can he make a .valid offer, without proof of his authority, to transfer the title to land. Here, as we have already seen, there was no proof accompanying the offer that Flannery had authority to make it, and upon this ground alone the offer was properíy rejected.

The commissioners were also justified in rejecting the offer, because Flannery, several days prior to the time the offer was made, had served upon the. corporation counsel a notice of appearance in the proceeding as the attorney for one Barney, who claimed to own certain lands, which included,- the parcel for which an award was subsequently made to Baker, so that at the time the offer was madq, not only was there no proof that Flannery had authority to make it, but there was at least notice, so far as Flannery was concerned, that title to'Baker’s land was claimed by another person whom he represented. .

If the foregoing views be correct, then it follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and' the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied,, with ten dollars costs. , Order filed.

Laws of 1901, chap. 466.— [Rep.