[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 312 There would be much difficulty in sustaining the mandamus for the whole of the relator's claim, assuming that the direction of the commissioner of highways to enter upon the premises of Cole is to be regarded as the direction of the town, and that the town by reason of such direction and the subsequent entry, in pursuance thereof, by the relator, was bound to indemnify him against the consequences of the trespass to the same extent as an individual would be under like circumstances. *Page 313
But the promise of indemnity, which the law implies on the part of the person at whose instance and request another does an act, supposed at the time to be lawful, but which turns out to have been wrongful as to a third person, is limited to indemnity against the natural consequences of the wrongful act. If the act was, as was that of the relator in this case, a trespass upon the lands of another, the damages which the party committing the trespass might be compelled to pay, in satisfaction of the injury, would plainly be recoverable against his principal.
The relator claims to charge the town with the sum of $2,711.47, for money paid, and costs and expenses incurred in the suit brought against him by Cole. The jury, upon the trial, rendered a verdict for the plaintiff of twenty-five dollars damages, upon which judgment was perfected in his favor for $298.83 damages and costs. The relator appealed to the General Term, where the judgment was affirmed, and then appealed from the decision of the General Term to this court, which affirmed the judgment of the court below. The greater part of the relator's bill is for expenses and disbursements incurred and paid in prosecuting the appeals from the original judgment. The relator gave no notice of the suit to the town or any of its officers, and the suit was defended, and the appeals brought upon his own motion, without the direction of the town or the highway commissioner, and without having made any application to the electors in town-meeting or to any town officer for advice or direction in the premises.
It would seem to be reasonable, that the relator should, before defending the action or incurring expenses, have given notice to the town or the highway commissioner, so that the town could have conducted the defense, or, if it so elected, make voluntary satisfaction for the trespass committed. But if the relator was justified in defending the action and incurring the costs of a trial, as the agent of the town, without specific direction of the town, he was not justified in continuing the litigation on the credit or at the expense *Page 314 of the town, after the right of Cole had been established by the verdict and judgment in his favor. The subsequent costs incurred by him cannot be deemed to be a consequence of the original command and direction of the commissioner. A party entitled to indemnity cannot enlarge his account or claim against the indemnitor by an improper resistance to a demand which he cannot defend. The judgment obtained by Cole was presumptively right, and established that the locus in quo was not a highway; and although it was subject to be reversed for error, the relator was not authorized, upon his own judgment and without the sanction of the town, to further litigate the question at its expense. Good faith, and a due regard to the rights of the town, required that he should not incur further costs in its behalf, without its direction and approval.
The statute has carefully secured the right of counties and towns to control and direct litigations against them. Suits against counties are commenced by service of process on the chairman or clerk of the board of supervisors, and the statute (1 Rev. St., 384, § 3) makes it the duty of the chairman or clerk, upon whom process is served, to lay before the board of supervisors, at their next meeting, a full statement of the suit or proceeding, for their direction in regard to the defense thereof. And where a suit is commenced against a town it is, in like manner, made the duty of the supervisor (1 Rev. St., 357, § 3) to lay before the electors of the town, at the next town-meeting, a full statement thereof, for their direction in the premises. An overseer of highways is a subordinate public agent, with defined, but very limited power, and it cannot be held, in view of the nature of his agency, that he may continue to litigate an action brought against him for an official act, after judgment has passed against him on trial, and demand indemnity from the town, if the subsequent litigation should prove unsuccessful.
But the claim of the relator against the town, for any amount, must fail, for the reason that neither the commissioner of highways, — by whose direction the entry upon the *Page 315 land of Cole was made — or the relator, were agents of the town, and that the town is not chargeable for their non-feasance or misfeasance or for their official acts or delinquencies. Under our system, no corporate duty is imposed upon towns in respect to the care, superintendence, or regulation of highways within their limits. Commissioners of highways have, by the statute, the care and superintendence of highways, (1 Rev. St., 501, § 1) and, in the administration of the highway system, they, and the overseers of highways in subordination to them, are independent public officers, exercising public powers, and charged with public duties specially prescribed by law. Highways are laid out and discontinued by the commissioners, under the regulations contained in the statute, (1 Rev. St., 502, § 2). They receive and disburse the money raised by taxation for the maintenance of highways, and apply it in their discretion, independently of any control of the town, and are not, in any respect, subject to its direction in the discharge of their duties. They are responsible, in a civil action, for any injury resulting from their neglect to repair a highway (if provided with means for that purpose) whereby an individual sustains damage (Hover v. Barkhoof,44 N Y, 113); and power is given them to sue in their own name to enforce penalties and other liabilities, created by the highway act.
On the other hand, the town, in its corporate character, has no control over the highways. It cannot lay out a highway or discontinue one. It is not liable for failure to keep highways in repair. Highways are not the property of the town, and the use is in the public not for the benefit of the inhabitants of the town alone, but of the whole community. The town exercises but two important functions in respect to highways; it elects the commissioner of highways, and determines, through the electors, in town-meeting, what sum, if any, exceeding $250 in each year shall be raised by taxation for the improvement of highways and bridges. The election of commissioners of highways by the towns is a convenient method of designating suitable public agents to discharge *Page 316 the duties imposed for general public purposes upon those officers, and the State has committed to the portion of the public, residing in the locality, to determine within certain limits what amount of taxation shall be imposed for the support of highways. These circumstances do not, however, make highway officers the agents of the town, so as to subject the town to liability for their acts. This view has been held by the Supreme Court, in many cases, commencing with the case of Morey v. TheTown of Newfane (8 Barb., 645), in which an able opinion was delivered by SELDEN, J. (See Town of Fishkill v. Plank-roadCo., 22 Barb., 645; Town of Gallatin v. Loucks, 21 id., 578;Town of Galen v. Plank-road Co., 27 id., 543; Gailor v.Herrick, 42 id., 79.)
In Lorillard v. The Town of Monroe (11 N.Y., 392), it was held, that assessors and collectors of taxes are not the agents of a town in its corporate capacity; and that a town is not responsible for any mistake or misfeasance committed by them while engaged in the performance of their duties. The assessors in that case had assessed the plaintiff's property, not liable to assessment, within the town, and the action was brought against the town to recover taxes collected upon this illegal assessment, which had been applied to general and local purposes, under the arrangements of the statute. It was decided that the town was not liable. DENIO, J., after referring to the provisions of the statute defining the corporate capacity and powers of towns, says: "In all other respects; for instance, in everything which concerns the administration of civil or criminal justice, the preservation of the public health and morals, the conservation of highways, roads and bridges, the relief of the poor, and the assessment and collection of taxes, the several towns are political divisions, organized for the convenient exercise of portions of the political power of the State; and are no more corporations than the judicial, or the senate and assembly districts;" and, in referring to the fact that a part of the taxes raised are expended within the town, says that these purposes "are as much public as those for which the *Page 317 State and county taxes are expended." The principle of this case is decisive against the claim made by the relator to charge the town for the money paid and expenses incurred in the suit of Cole.
The case seems to be a hard one for the relator, but we are satisfied that no legal obligation rests upon the town to indemnify him, and the order of the General Term must therefore be affirmed.
All concur, except MILLER and EARL, JJ., absent.
Order affirmed.