(dissenting) :
I cannot agree with the other members of the court to affirm this: order. The corporation counsel, in my opinion, had no authority to make the offer upon which the judgments were entered, and,, therefore, his act is not binding on the city. All the power which, the city has is specifically expressed in or necessarily implied from, the charter; and the corporation counsel, the legal adviser of the= city, has no power, other than that derived from the city through the charter, and every act assumed to be done by him in excess of", that power is void. The charter in effect at the time the offer was-made (Consolidation Act, Laws of 1882, chap. 410) did not confer upon the corporation counsel either directly or impliedly the power to-do what he did, and his act is not sustained by any precedent that I. have been able to discover. An attorney acting for an individual cannot, in the absence of express authority, make a compromise for his-client, or conclude him in relation to the subject-matter of an action. (Barrett v. Third Ave. Railroad Co., 45 N. Y. 635); he cannot satisfy a judgment without payment in full, and if he does the satisfaction will be set aside (Beers v. Hendrickson, 45 N. Y. 665); he cannot release his client’s rights or subject him to a new obligation. (Lewis v. Duane, 141 N. Y. 314.) The corporation counsel has no larger powers, as such, to bind the city than those connected with the ordinary relations of attorney and client. This is precisely what was- held in. The People and Taylor v. Mayor (11 Abb. Pr. 66). There judgment was rendered against the city of Hew York, and the corporation counsel, doing what he believed to be for the best interest of the city,, stipulated not to appeal. Subsequently a motion was made to set: aside the stipulation, and the court held that it would not inquirpinto the merits of the action by considering whether the opening of" the judgment would result in gain or loss- to the city ; that the • corporation counsel had no power to make the stipulation, and, therefore, the -city had a legal right to have it vacated. In the course of" *339the opinion delived by Mr. Justice Ingbaham he said : “ It would be almost impossible to form a correct idea of the consequences if it were ever established that any head of a department had the power, without the authority of the common council, to dispose of city rights and property either directly or indirectly; and if the head of the law department can at' his pleasure make the corporation a party to suits, and when a large recovery is had against the city can stipulate that the city shall not have any means of review or redress, he would possess an absolute control over the city property far beyond that possessed even by the common council.' It appears to me that he possesses no such power, and the stipulations were unauthorized and cannot be sustained.”
Here the corporation counsel had no power to make the offers and the city has the legal right to have the judgments vacated, and it is no concern of the court whether it is for the best interest of the city or not. The court discharges its duty by determining the question according to the legal rights of the parties. The power to settle and compromise these actions, if the power existed at all (which it is not necessary now to determine), after the claims had been presented to and rejected by the comptroller (McGinness v. Mayor, 26 Hun, 142), was lodged in the common council. The actions are all based upon contracts, and before they were commenced the claims forming the basis of each were presented to and rejected by the comptroller, and after such rejection, in the absence of some act, of the common council, no other body or officer could obligate the city to pay th e same or any part thereof. Section 74 of the Consolidation Act supports this view. That section, among other things, provides that “ no additional allowance beyond the legal claim, which shall exist under any contract with the corporation, or with any department or officer thereof, or for any services on. its account or in its employment, shall ever be passed by the common council except by the unanimous vote thereof ; and in all cases the provisions of any such contract shall determine the amount of any claim thereunder, or in connection therewith, against the said corporation or the value of any such services.”
But it is said, or such inference may fairly be drawn from the prevailing opinion, that the corporation counsel had power to do what he did, because his act was approved by the mayor, the special *340counsel, and the aqueduct commissioners, and that the comptroller, if he did not consent, at least did not object. There is no doubt but that the officers connected with the city government referred to, with the exception of the comptroller, deemed it wise, and for the .best interests of the city, that the settlement should be made, and that they approved of the corporation counsel’s act in making it. .But I am unable to see that this has any effect upon the question of authority. The corporation counsel either had the power to make the offer or else he did not. If he did not have the power under •the charter, then I do not see how it can be held that the power could be conferred upon him by special counsel retained solely to defend the actions, or by the aqueduct commissioners, whose powers were specified and so limited by the act creating them that they could not obligate the city to pay any sum whatever for work done or materials furnished in the construction of the aqueduct, not specified in the. contracts which they were authorized to make ; or by the major because he, an ex officio member of the aqueduct commission, happened to be present at the meeting when the resolution authorizing the settlement to be made was passed. The comptroller did not consent to the settlement, and it was not necessary for him to object . to it in order to prevent the city being bound by it.
The corporation counsel, as we have seen, had no authority under the charter to authorize the judgments to be entered, and something' more than the- facts which appear in the record must be shown . before he could obligate the city to pay $700,000. The settlement may have been a wise one, but that has nothing to do with the question of whether or not he had the 'power to make it. The fact remains that the act of the corporation counsel was unauthorized, • and the city having attacked it, as it had a legal right to do, the judgments should be vacated.
■ I am also of the opinion that the judgments should be vacated for want of consideration. The city is not an eleemosynary corporation. It must be just, but it cannot be generous. It mtist pay its obligations, but it cannot give its property away.
The'claims involved, in these actions, in the condition in which . they were when the judgments were entered, could not be legally enforced against the city. That has been decided by the Court of Appeals in O'Brien v. Mayor (139 N. Y. 543). A comparison of *341the complaint in the O’Brien action with the complaints in these, will show that a recovery was sought in all the actions upon substantially the same grounds, and that a determination of one necessarily determined the rights of the parties in the others, and it was so considered by the corporation counsel, by the special counsel and by the plaintiffs themselves. These actions and the O’Brien action were all brought in 1891. The O’Brien action was tried in June or July of that year, and from that time until after the determination by the Court of Appeals, nothing further was done in any of those actions. After the Court of Appeals had decided the O’Brien action in favor of the city, then the plaintiffs in these sought to secure some relief from the Legislature, and, failing in that, applied in one of the actions to the court for leave to amend the complaint so that the certificate of the engineer might be attacked as fraudulent.* The court, however, refused to allow the amendment and the plaintiffs appealed, and thereafter the moving papers show that it was practically conceded by all the parties that a recovery could not be had unless relief in some form could be obtained from the Legislature or the order refusing the amendment could be reversed.
The only consideration, therefore, for the judgment was prospective or threatened legislation, once applied for and refused, or judicial action, once applied for and denied. That this was the consideration clearly appears from the correspondence between the corporation counsel and the special counsel and the aqueduct commissioners.
In the letter of the corporation counsel to the special counsel under date of .November 25, 1896, he said : “ The decision already rendered in the one case which has been tried doubtless affords ample protection to the city so far as litigation is concerned, but offers no assurance against legislative attacks. Last year, as you are aware, a bill was introduced in the Legislature looking to the appointment of a commission to make awards upon these claims, and I am informed upon authority, which appears to me to be worthy of credence, that a similar attempt will he made during the forthcoming session. I am very apprehensive that either this year or some other year such a measure will be passed, and I feel that if it should our chance of complete success before a commission would, for many and obvious *342reasons, be very remote. * *■ * As you are aware, I have always maintained the position, as well since I have been counsel to the corporation as when I was a member of the aqueduct board, that the contractors had already been paid upon their final estimates all that they were justly entitled to, and that the construction given to the contract * * * for tunnel excavation was the true legal' construction, and this view has ■ been sustained by the Court of Appeals.” To this letter the special counsel, under date of December ■ 3,1896, replied : “ We have at all times been of the opinion, in which, while occupying a place on the Board of Aqueduct Commissioners you concurred, that in equity and justice none of the claims of the contractors which have been put in suit or upon which demands have been made are valid or should be acceded to.”
And, in a letter of the special counsel to the corporation counsel, under date of October 25, 1897, referring to the previous advice as to the advisability of a settlement, they said : “We were not influenced in any considerable degree by any opinion or belief that the claims of the contractors had any foundations whatever in law, justice or equity. Our advice was founded upon the possibility that the city might, through the chances and changes of time, lose the benefit of evidence. now accessible to it or that the Legislature might be induced, under the pressure of the contractors, into some ill-advised measure of indulgence toward them. We regarded the decision of the Court of Appeals as a final determination adverse to all the claims of the contractors, and that it would be equally' available against any of such claims. * * * In giving our former advice we assumed that there was some danger of such indulgence, notwithstanding the entire want of justice and equity in the claims. * * * It may reasonably be supposed that they selected what they supposed to be their strongest claims for active prosecution, but we do not regard this as a sufficient assurance against legislative intervention. * * * ”
; And, in a letter of the corporation counsel to the special counsel, under date of November 17, 1897, he said : “ So far as any strictly legal claim is concerned, its non-existence has been determined by the Court of Appeals;' and, if the rule of stare decisis applied to the Legislature as well as the courts, there would be no reason for making any compromise at all; ” and, in a letter to the aqueduct com*343a-nissiouers in the same month : “As I have repeatedly said to the members of your bo.ard, so far as'strict legal liability exists, it has "been authoritatively settled by the Court of Appeals that there is none such on the part of the city. The only justification for settling at all, therefore, would be that, upon the whole, it was wise for the city, as it would be wise for any other litigant, to purchase peace by the payment of a sum which, while it is considerable in itself, is very much smaller than the aggregate of the claims which have been asserted.”
The property of the city cannot be used to prevent hostile legislation or to “ purchase peace ” by preventing the prosecution of •claims which have no legal existence. I cannot conceive of a more -dangerous precedent to the city than this one if the order be affirmed, as it practically' puts the disposition of the property of the city in the hands of the corporation counsel.
The order appealed from should be reversed and the motion granted, with'costs.
Patterson, L, concurred.
Order affirmed, with costs.