Onderdonk v. City of Brooklyn

Emott, J.

The plaintiff in this case purchased various lots of land at sales for taxes or assessments, or both. He received the certificates required to be given by the collector, and paid to him the amount of his bids. Afterwards these parcels of land were redeemed by mortgagees or owners, who paid to the collector of taxes and assessments for the city of Brooklyn the amounts paid by the plaintiff on the purchase of such lots respectively, with interest at fifteen per cent. These amounts, so paid to the collector, have not been paid over by him, and after demanding payment of the collector, the plaintiff has brought this action against the city.

I am clearly of opinion that the action cannot be maintained. It will be observed that it is not brought’to recover back money unlawfully obtained from the plaintiff by the city, or which has been received by the city in any way. A part of the money paid by the plaintiff to the collector upon the sale may have been received for, and paid over to, the city treasurer, but that is not the subject of the present action. What the plaintiff claims is money paid to this officer by other parties, for the purpose of redeeming property previously sold for the taxes. The city had therefore ceased to have any interest in either the property or the moneys which were to result from its redemption. The moneys paid for that purpose were paid to a public officer, for the use of the plaintiff. So the statute declares. (Charter of Brooklyn, tit. 5, § 29.) As far as the city is concerned, its relations to the tax, the property, and the purchaser, were at an end when the property was sold and the tax satisfied. What followed concerned only the owners or mortgagees of the property sold and the purchasers at the sale. The collector unquestionably acted as a public officer in receiving the redemption money, but not as the agent of the municipal corporation which is sued in this action.

There is no principle or precedent for the doctrine that a municipal corporation is liable for a wrong or a neglect of duty committed by one of its officers, merely because he is a corporate or municipal officer. When such officers act in its behalf, and within the scope of their duty, they may bind the corporation by the contracting of a debt. When, in the performance of any undertaking by the corporation, its officers commit an injury upon private property or rights, the corporation are liable upon the principle of respondeat superior. But in all these cases the officer is acting in behalf of the corporation, and they are liable for his acts, to the extent that any other principals would be liable for the acts of his servant or agent.

Where the corporation itself is bound to perform an act, or discharge a duty, it will be liable for the manner in which that duty is discharged, or that act performed, and for a neglect to perform it. The' recent cases of Conrad v. Trustees of Ithaca, (16 N. Y. Rep. 158,) and Weet v. Trustees of Brockport, (Id. 161, note,) proceed upon this principle. Its limitation, with reference to the present inquiry, is that the liability only extends to cases where the duty is cast upon the corporation, and not where it is imposed by the law upon the officer. (See Martin v. Mayor of Brooklyn, 1 Hill, 545; Lorillard v. Town of Monroe, 12 Barb. 161; 1 Kern. 392.)

In the present case the complaint charges a non-feasance or neglect of a duty to the plaintiff, imposed by statute upon the collector of taxes in the city of Brooklyn. If the collector is in any sense, or in the performance of any part of his duties, the agent of the corporation, it can hardly be said that he is so here. The collector is a civil officer, and the duty of the neglect of which the plaintiff complains is cast upon him by a public statute. In the discharge of this part of his functions he does not act for or in behalf of the corporation. They do not receive a benefit by the redemption money, and are not in any degree connected with the transaction, except by the fact that it is conducted through the agency of an officer elected by the citizens of Brooklyn. In the case of Lorillard v. The Town of Monroe, just cited, it was held that a town is not liable for malfeasance or misfeasance of its assessors, and that assessors and collectors of taxes are not, as such, the agents or servants of the towns, nor are these corporate bodies liable for the misconduct of such officers in the assessment or collection of taxes. There is no difference in this respect between the relation of cities and towns to these officers. Cities and villages are liable in certain cases to duties and responsibilities which are not imposed upon the bodies which are called towns in our system. They possess greater powers, and are responsible for the acts of their officers in the exercise of these powers. They enjoy greater privileges, and owe certain duties in compensation for these privileges, for the neglect of which they are liable. But the difference, between towns and cities in these particulars is in the greater duties and responsibilities, in respect to certain subjects, cast upon the latter corporations themselves, and riot in any more extended responsibility-’for the acts of their officers in the discharge of duties' imposed specifically upon them' and not upon the corporaté body. Especially is this not the case when the same officers exist in both classes of corporations, with duties essentially the same in each case. If a town cannot be held liable for the'-neglect of a collector to- discharge the duties of hid- office « according to the law creating it, I am unable to see any reason why a -city should be under any greater responsibility-in' á similar case. '

The complaint in this action does not disclose any cause of action, and the judgment must ¡be reversed.

Bkowm, J. concurred.