Mark v. Village of West Troy

New York Supreme Court

Mark v. Village of West Troy

23 N.Y.S. 422, 69 Hun 442, 76 N.Y. Sup. Ct. 442, 52 N.Y. St. Rep. 782

CourtNew York Supreme Court

DecidedMay 9, 1893

StatusPublished

Cited by1 cases

This text of 23 N.Y.S. 422 (Mark v. Village of West Troy) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mark v. Village of West Troy, 23 N.Y.S. 422, 69 Hun 442, 76 N.Y. Sup. Ct. 442, 52 N.Y. St. Rep. 782 (N.Y. Super. Ct. 1893).

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Opinion

PUTNAM, J.

We regret that we are unable to agree with the views adopted by the referee in this case. Plaintiff’s assignor performed meritorious and valuable services in actions where defendant was a party, and should receive compensation therefor. But the claim on which the action was brought was not shown to have ever have been presented as required by defendant’s charter. Chapter 52, Laws 1879, §§ 28, 29, amending sections 32 and 33 of the charter. The act requires that a bill shall be made out in items, and verified and formally presented to the board of trustees, before an action can be maintained. It must be presented at a regular or stated meeting. The only proof of presentation of the bill was to one Hart, chamberlain, and Holsapple, president, of defendant. That was not a presentation to defendant’s trustees, required by the charter as a prerequisite to an action. The former presentation to the defendant’s trustees should have been alleged in the bill, and proved upon the trial.

Again, plaintiff failed to show the retainer of his assignor by defendant. An attorney, as such, has no authority to employ counsel. In re Bleakeley, 5 Paige, 313, 314. Again, the charter of defendant expressly provides (section 32, amending section 37) that no officer of the village, or any other person, shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do; and hence the president of defendant could not retain Mr. Hitt. The plaintiff, as part of his case, was bound to show an employment of Mr. Hitt, in pursuance of the provisions of the charter, which he failed to do, and hence we think the court erred in not granting the motion for nonsuit.

This case is not like that of Moore v. Mayor, 73 N. Y. 238, and kindred cases, where a party in good faith enters into a contract with public officers, within their power to make, and performs, in which case the officers are estopped from alleging the irregularity of their action, to the prejudice of the party who so performed. Those cases do not apply if there is a statutory prohibition of power, unless exercised in the regular way. Clute v. Robison, 38 Hun, 284. In this case there was a prohibition in the charter of defendant which prevented the president or attorney from retaining Mr. Hitt unless specially authorized by the board of trustees. It was incumbent on plaintiff to establish this special authority," to maintain Ms action. Downing v. Rugar, 21 Wend. 178, and Hills v. Bank, 26 Hun, 161, cited by respondent, are not similar to this. Those were cases where public officers, consisting of two or three, assumed to act in the name of all, or of a majority, and it was assumed that all the officers acted, or were drily notified of the meeting where action was had. In this case it was not shown that the trustees of defendant ever acted, or assumed to act, in the mat> [424]*424■ter of retaining Mr. Hitt. If it had appeared that a special meeting of defendant’s trustees had been called in the matter of retaining Mr. Hitt as counsel, and that a mere quorum had attended, who passed.a resolution to employ him, it would probably be assumed that those trustees who did not attend had been notified of the meeting. The judgment should be reversed, and a new trial granted; costs to abide the event.

MAYHAM, P. J., concurs. HERRICK, J., not acting.

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PUTNAM, J.

We regret that we are unable to agree with the views adopted by the referee in this case. Plaintiff’s assignor performed meritorious and valuable services in actions where defendant was a party, and should receive compensation therefor. But the claim on which the action was brought was not shown to have ever have been presented as required by defendant’s charter. Chapter 52, Laws 1879, §§ 28, 29, amending sections 32 and 33 of the charter. The act requires that a bill shall be made out in items, and verified and formally presented to the board of trustees, before an action can be maintained. It must be presented at a regular or stated meeting. The only proof of presentation of the bill was to one Hart, chamberlain, and Holsapple, president, of defendant. That was not a presentation to defendant’s trustees, required by the charter as a prerequisite to an action. The former presentation to the defendant’s trustees should have been alleged in the bill, and proved upon the trial.

Again, plaintiff failed to show the retainer of his assignor by defendant. An attorney, as such, has no authority to employ counsel. In re Bleakeley, 5 Paige, 313, 314. Again, the charter of defendant expressly provides (section 32, amending section 37) that no officer of the village, or any other person, shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do; and hence the president of defendant could not retain Mr. Hitt. The plaintiff, as part of his case, was bound to show an employment of Mr. Hitt, in pursuance of the provisions of the charter, which he failed to do, and hence we think the court erred in not granting the motion for nonsuit.

This case is not like that of Moore v. Mayor, 73 N. Y. 238, and kindred cases, where a party in good faith enters into a contract with public officers, within their power to make, and performs, in which case the officers are estopped from alleging the irregularity of their action, to the prejudice of the party who so performed. Those cases do not apply if there is a statutory prohibition of power, unless exercised in the regular way. Clute v. Robison, 38 Hun, 284. In this case there was a prohibition in the charter of defendant which prevented the president or attorney from retaining Mr. Hitt unless specially authorized by the board of trustees. It was incumbent on plaintiff to establish this special authority," to maintain Ms action. Downing v. Rugar, 21 Wend. 178, and Hills v. Bank, 26 Hun, 161, cited by respondent, are not similar to this. Those were cases where public officers, consisting of two or three, assumed to act in the name of all, or of a majority, and it was assumed that all the officers acted, or were drily notified of the meeting where action was had. In this case it was not shown that the trustees of defendant ever acted, or assumed to act, in the mat> [424]*424■ter of retaining Mr. Hitt. If it had appeared that a special meeting of defendant’s trustees had been called in the matter of retaining Mr. Hitt as counsel, and that a mere quorum had attended, who passed.a resolution to employ him, it would probably be assumed that those trustees who did not attend had been notified of the meeting. The judgment should be reversed, and a new trial granted; costs to abide the event.

MAYHAM, P. J., concurs. HERRICK, J., not acting.

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23 N.Y.S. 422, 69 Hun 442, 76 N.Y. Sup. Ct. 442, 52 N.Y. St. Rep. 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mark-v-village-of-west-troy-nysupct-1893.

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