People ex rel. Taylor v. Brennan

39 Barb. 522, 1863 N.Y. App. Div. LEXIS 43

• Court: New York Supreme Court
• Decided: May 4, 1863
• Status: Published

Opinions

Barnard, J.

The remedy by mandamus is both appropriate and proper in this case. An officer of the corporation undertakes to set at naught the corporate will. Surely the dotporátioü tnust have some legal remedy to compel its subordinate to obey its lawful behests. It is impossible to conceive of any legal remedy adequate for the purpose other than a mandamus. Assuming that the corporation could have sued out the writ, is there any objection to allowing to the- party who is beneficially interested in enforcing the corporate will expressed in his favor, the use of the same remedies which the corporation would be entitled to use ? There does not appear to be any well founded objection, so long as the corporation assents to the proceeding being taken against the officer.

Now here we find no corporate act authorizing or directing the officer to be defended on behalf of the corporation. The assent of the corporation to this proceeding must therefore be presumed.

Again; the party here has no other remedy at law. Three remedies have been suggested:

1. Specific performance. That is an equitable, not a legal remedy. The existence of an equitable remedy constitutes no impediment to the remedy by mandamus. (10 Wend. 395.)

2. Action for the price.

3. Action for damages for not accepting the conveyances.

The relator offered to sell the property either for cash or for corporate bonds. The corporation accepted the offer, the payment therefor to be made in corporate bonds. This constituted an agreement whereby payment was to be in bonds. There is no legal remedy other than mandamus by which the relator can obtain the bonds. The party is entitled to the payment of the price in the mode provided for, and he should not be compelled to accept any thing in substitution thereof, which would be the effect of a resort to any legal remedy other than a mandamus.

The fact that one has an action for damages for breach of official duty appears to have been conceded as forming no obstacle to the remedy by mandamus. Thus in the case of The People v. Mayor &c. of New York, (10 Wend. 395,) it was held that a mandamus would lie to compel the execution to the relator of a lease of property purchased by him on a sale for taxes. In Van Rensselaer v. Sheriff of Albany, (1 Cowen, 501,) a mandamus was issued compelling a sheriff to execute a deed to a redeeming creditor. In both of which cases an action for damages would lie equally as well as in the present. The issuing of these bonds is an official duty.

From motives of public policy the relator should not be put to an action for the price, or for damages, against the corporation. The corporation should not be compelled to pay the price in a mode other than that they have seen fit to designate, or to be mulcted in large damages, and should not be subjected to the expenses of a litigation because one of the corporate officers, without any authority, hut of his own mere will, refuses to obey the corporate command. Nor does the law require, nor is there any propriety in requiring the relator to look simply to a money judgment against a person other than those he has contracted with.

As respects the equitable action for specific performance, although this forms no legal impediment to proceeding by mandamus yet, as a general rule, where a party has such remedy a mandamus should be denied. But in all cases where an officer of a corporation refuses to comply with the lawful directions of the corporate body, and a mandamus is sued out by the party for whose benefit and in whose favor the directions are given, with the consent of the corporate body, the party should not and will not be put to an action against the corporate body for a specific performance. There is no propriety or reason, in such case, for subjecting either the corporate body or the party to the delay or expenses of a suit.

With respect to an action for specific performance against the officer, it is, to say the least, very doubtful whether such an action would lie, as he is not a party to the contract. Even were it less doubtful there is no very substantial reason why an action against him should he resorted to, for enforcing the performance of an official duty of this character.

The next point for consideration is whether the court had power to order a peremptory mandamus without the previous issue of an alternative writ. The objection which is urged is that here are disputed facts which renders an alternative imperative. To this it is a sufficient answer that the parties below made no objection to the court adjudicating upon all the questions raised, whether of law or of fact, on the affidavits, and it was in fact so adjudicated by their consent. The counsel for the defendant does not make the point on this appeal. It was competent for the parties to waive the provisions of the statute. They having waived those provisions, it does not lie with any other person to raise an objection. As, however, this point has been insisted on with great earnestness, by counsel who was allowed to present his views as amicus curice, it is proper to consider the point in another light, viz: as to whether, admitting the disputed fact to be as the defendant alleges it to be, it forms an excuse to the defendant for not obeying the resolutions. If it does not, then there can be no necessity for a trial to ascertain what the fact is.

It is well settled by a long series of decisions that where on an order to show cause the facts are admitted, or the excuse offered is insufficient, the court will, if the decision be in favor of the relator, direct a peremptory mandamus. -The present case falls within this principle. The only matters of fact alleged to be in dispute are: 1st. Whether Simeon Draper was interested in the original purchase of the property in question from the city; 2d. Whether he ever had any interest in the land; and 3d. Whether the title to the property was ever in him.

The second and third matters are wholly immaterial, except as evidence tending to show the first. There is no law preventing or affecting a purchase by or a title held by a city officer, from a third person, of land granted to that third person by the city; nor would the fact that a city officer had, at some anterior time, held the title to land which had by mesne conveyances become vested in the city, affect the title of a purchaser from the city of that land.

The only material disputed fact (if a fact can be said to be disputed when it is not distinctly controverted, but only inferentially by the statement of other facts which would admit of a construction either in consonance with or dissonance to the fact alleged to be in dispute,) is as to whether Simeon Draper was interested in the original purchase.

How assuming the fact to be that he was so interested, (although the papers submitted on behalf of the comptroller do not distinctly allege such to be the case,) that fact affords no excuse for the refusal of the comptroller to comply with the resolution of the common council. It is said that the existence of this fact renders the conveyance to Draper and the conveyances to Varnum void; and this is said to result from the fact of Mr. Draper having been at that time one of the governors of the alms house. It is true that the judge who delivered the prevailing opinion of the court of appeals, in the case of Roosevelt v. Draper, (23 N. Y. Rep. 329,) in the course of his opinion, says that Mr’. Draper, as such governor, was forbidden by the city charter to be concerned in the purchase; but in the same connection he intimates that the only party who could take advantage of that circumstance would be the city, to impeach the conveyance. It is, in that case, distinctly held that neither a corporator nor a tax payer can impeach the conveyance, nor can a cred- . itor, unless the act done be such as to deprive him of his security to an extent which would hazard the realization of his demand. There is no other party who can act but the city. This decision was made in June, 1861. As yet the city has taken no proceeding to impeach the conveyance; on the contrary the corporate body, by the resolution in question and by not authorizing their officer to resist this application on their behalf, have ratified the transactions. For this reason the defendant cannot object, on the ground of any invalidity in the transfer of the property of the city, arising out of the fact of the alleged incapacity of Mr. Draper to be interested in the purchase.

Again; under the resolution all that was left to the comptroller to determine on was as to the form of the deed, as to whether it was executed by all the parties appearing on the record to be the owners of the premises by title derived from or through Joseph B. Varnum, and as to whether the property was free from incumbrances except taxes and assessments.

On all these points the comptroller was satisfied. He was not authorized under the resolution to inquire into any other matters. But granting that he could have gone to the extent of ascertaining whether the title of the property was such that the corporation would have a title thereto after the execution of the deed, even then there was no foundation for a refusal, on this ground. The record title was clearly in the grantors named in the deed, and that title joined to the then existing title of the corporation, if it had any, gave the corporation a perfect title on the record; if it had no existing title then the deed gave it a title.

Viewing this alleged fact of the interest of Draper in connection with other facts, there will ap>pear another reason why such interest formed no excuse for not complying with the resolution.

These other facts are that it was in dispute as to whether Draper was interested in the original purchase; and second, as to whether Draper came within the prohibition; for the decision in the case in 23 New York Reports turned on other grounds; and third, that other parties held the record title. A corporation has equal power and right as an individual to compromise a litigation, or any difficulty tending to litigation or any disputed title. When the resolution in question was passed it must be assumed that the corporate body knew the exact state of its title. The form of the resolution, and the fact that although the alleged defect in the title has been brought to their notice by the defendant, they have not authorized a defense to this proceeding on behalf of the corporation, show that they were aware of the state of the title, and that by the resolution they intended to compromise the vexed question existing between the corporation and the person holding a record title. The will of the corporate body to make the compromise having been declared by the resolution, it did not lie with the defendant to gainsay that will.

As then the only material disputed fact did not, even conceding it to be as the defendant alleged, furnish any satisfactory cause against issuing the mandamus, it was wholly unnecessary to direct an alternative writ for the purpose of having a trial respecting that fact.

But it is further urged that upon the admitted facts appearing on the papers, and assuming it to be the fact that Draper was interested in the purchase, the mandamus should not have been granted. And this is urged on three grounds :

Firstly. On the ground that by reason of various matters the grantors in the deed tendered had no title, but the title was already in the city.

Secondly. That there were various defects and informalities in the passing of these resolutions of purchase, and a want of power to pass them.

Thirdly. That the offer of the relator, and the resolution of the common council, did not create a valid contract, because the relator at the time owned only one third, and did not pretend and had no authority to contract for his co-tenants.

The matters relied on in support of the first ground are that Mr. Draper was interested in the original purchase; that by the terms of the sale by the city, six per cent only was reserved in the mortgage; and that the sale was nqt conducted in accordance with the provisions of the ordinances.

With reference to the interest of Mr. Draper, it is above shown that even assuming the fact to be, that he was so interested, that fact does not excuse the defendant. The papers presented on this appeal, however, do not show him to have been so interested. It is nowhere sworn to on behalf of the defendant that Draper was so interested; but the inference is sought to be drawn from the fact that the deed was made to him and that he made the cash payment that was required. Mr. Draper, however, expressly' and distinctly swears that he did not know the original purchaser (Mr. Lovejoy) before the purchase made by him, (Lovejoy;) that he, Draper, had nothing to do with the city authorities, either directly or indirectly, in the purchase; that he came into the purchase accidentally, and he details the manner in which, after the purchase was made from the city, by Lovejoy, he became interested therein.

This clear and positive statement must outweigh the mere inference to be drawn from the fact of the deed being at first given to Draper and of the payment made by him. It is not uncommon upon a sale of real estate, for the original purchaser to part with his interest to a third person in no way connected with the original purchase, and to have the deed pass directly to that third person.

So that whether the judge below decided on the ground that Draper was not interested in the original purchase, or on the ground that, conceding that he was^ so interested, that fact formed no excuse to the defendant, his decision in either aspect, so far as this objection goes, was correct.

Now as to the other matters relied upon in support of the first ground, the same line of reasoning which has led to the conclusion that an interest by Draper in the original purchase does not excuse the defendant, also leads to the conclusion that the rate of interest and the manner of conducting the proceedings on the sale by the city form no excuse to the defendant for not complying with the resolution. And as regards the proceedings for the original sale by the city, they are stated by the judge who delivered the opinion of the court of appeals in Roosevelt v. Draper, to have been perfectly regular and according to law, excepting only the reservation of six per cent instead of seven per cent interest, on the mortgage. Whatever effect that defect of the reservation of interest might have on the original conveyance by the city, it can only be taken advantage of by the city, in the same manner as the objection arising from Draper’s interest can be taken advantage of. The same reasons which debar the defendant fr8m setting up in answer to this application the fact of the interest of Draper also debar him, from setting up the defect in the reservation of interest.

With respect to the second ground, it is alleged that the common council cannot enter into a contract by resolution, as in this case; because such an act is legislative, and the 11th section of the act of 1857 declares that any legislative act of the city must be by ordinance. Conceding -the act in question to be legislative, yet the 11th section referred to expressly provides that every legislative act may be by ordinance, act or resolution. In what manner the resolution can infringe sections 28 and 38 of that act is not perceived.

It is further urged that the resolution violates section 37, in that after the veto of the mayor it was passed by' both boards on the same day. The provision of section 37 is that no ordinance which shall have passed one board shall be acted on by the other board on the same day, unless by unanimous consent, &c. In this case there was unanimous consent.

It is further urged that the resolution directing the payment of the purchase money is of no validity, in consequence of the provisions of the 32d section of the act of 1857, which provides that the common council shall have no authority to borrow any sum whatever on the credit of the corporation, except in specified cases ; and it is contended that a direction to pay in bonds is indirectly borrowing money, as section 3T of the act of 1857 does not permit any money to be paid out of the treasury without a previous appropriation.

The word borrow must be taken in its ordinary acceptation. The city cannot be said to borrow money by the issue of the bonds in question, any more than a man who buys goods and gives his note therefor can be said to borrow of his vendor, which can hardly be pretended. When it becomes necessary to pay the bonds, these provisions may be applicable.

The only question that can now arise is whether the corporation had power to contract a debt for the purchase money of the land. If it had power to contract the debt, the right and power to issue the obligation therefor follow Sis an incident, unless that incident has been expressly taken away by some positive statutory enactment. No such statutory enactment has been referred to.

Section 28 of the act of 1857 refers to the incurring of expense by the departments; section 31 to the drawing of money from the treasury; section 33 to the borrowing of money; and section 38 to work to be done and supplies to be furnished, and' to the sale of property by the corporation. As to the act of 1853, it is only necessary to refer to the opinion delivered in Ketchum v. City of Buffalo, (21 Barb. 294.) That was a case of a sale df real estate to the city for a market and a payment of part of the purchase money by a city bond. The court, in the course of its opinion says: “ This is a simple debt against the city, and as it does not appear that in creating it the common council exceeded the limitations contained in section 3, the evidence of the debt is not void according to section 2.” (Cited from, page 307.)

Now this property was purchased for market purposes. The corporation of the city of New York has full power to establish markets, and, as incident to that, to purchase a place necessary therefor. These are the views entertained by Justice Ingeaham in The People v. Lowber, (28 Barb. 65.) The same views are entertained by the court in the case of Ketchum v. The City of Buffalo, (21 id. 294.) A power to purchase carries with it a power to incur an indebtedness for the purchase money, and to provide for the payment of the indebtedness, unless, indeed, that power is so restricted as that it cannot be exercised unless there is sufficient funds in hand to pay for the property. No such restriction can be found. If the corporation has funds which can be appropriated to the payment, the indebtedness may be discharged at the moment of its creation. If it has no such funds, then it may purchase on credit, and may issue its obligations undertaking to pay the indebtedness at a subsequent, future time, and make subsequent provision for the payment of them.

To the objection that the relator owned only a third in the land at the time of his offer, and that it does not appear on the papers that he had any authority to contract for the other owners, there are two answers: 1st. The extent of his ownership at that time is immaterial: it is sufficient if at the time when the deed was to be delivered he was able to tender a deed executed by the proper parties. 2d. The objection was not taken below, when it might hay§ been obviated by showing an authority from the other parties. It cannot he taken on appeal, for the first time.

There is hut one objection remaining to be considered, viz, that it is not in the power of the comptroller to execute the corporate bonds of the city. It is however within the comptroller’s power to do those acts which lie with his department, and which are personal to himself, viz, the preparation of the bonds, and his signature to them. The order directing the peremptory writ to issue, so far as it directs that writ to command the comptroller to procure the signature of the mayor and the corporate seal to be affixed to the bonds, is clearly erroneous, and should in these respects be reversed.

In conclusion, it is to be observed that there is no allegation of any fraud in the original sale by the corporation, or in the purchase by it. The mandamus is resisted solely on the ground of alleged infraction of statutory law. These matters have been fully presented and considered ; and the court is of opinion that, notwithstanding the objections arising out of these statutory provisions, the relator is entitled to have the price agreed to be paid.

No question is raised as to the necessity or wisdom of purchasing land fqr a market in this locality. Even if there had been, this court could not interfere. In the language of Judge Ihgbahah, “However unwise, improvident, extravagant or unnecessary a purchase a municipal corporation may intend to make, neither the attorney general nor any tax payer has,'in my judgment, any right to interfere by action and by injunction and in the language of the court of appeals, “ an act of administration likely to produce taxation, is an affair altogether public, and the only remedial process against the abuse of administrative power, tending to taxation, is furnished by the elective franchise, or a proceeding in behalf of the state ’ or in case of an act without jurisdiction, in treating the attempt to enforce the illegal tax as an act of trespass.”

The order, so far as it directs the comptroller to procure the signature of the mayor and the corporate seal to be affixed to the bonds, reversed; in other respects affirmed ; with the modifiation that the comptroller, after having signed the bonds, shall deliver them to the relator on the receipt of the deed heretofore tendered, leaving it to the relator to have the other formalities observed which he may deem necessary.

Suthebland, J. concurred.