McGuiness v. Mayor of New York ( 1877 )

Lawrence, J.

I am of opinion that the demurrer interposed by the plaintiff to the third paragraph of the defendants’ answer should be sustained. The defendants, as owners of the pier, were liable to the plaintiff for any loss or damage which he sustained by reason of its defective construction or dangerous condition (Moody agt. The Mayor, &c., 43 Barb., 282; Taylor agt. The Mayor, &c., 4 E. D. Smith, 559).

I know of no law which prohibits the city from compromising such a case and thereby avoiding litigation.

The common council are the exponents of the will of the corporation, and the resolution which they passed directing the payment of the sum of $350 as a settlement or compromise of the plaintiff’s claim seems to me to fall within their lawful powers.

I do not regard the 101st section of the charter, on which the defendants’ counsel relies, as applicable to this case. Thé resolution was not the incurring of expense by any of the departments or by the officers thereof. It was a direction to pay a liability which the law imposed upon the defendants, which liability was settled and compromised at the amount-specified in the resolution.

The law imposed the liability. The plaintiff’s right of action was complete when the accident occurred, if he had a right of action at all.

If the defendants became convinced that they could not successfully resist a suit at his hands, and therefore determined to compromise the claim, the plaintiff surely cannot lose his right of action against them by their failure to make an appropriation, or by their directing that the claiifi be paid out of an appropriation which has been already exhausted (See Detweiler agt. The Mayor, &c., 1 T. & C., 658).

If these reasons are sound, it is unnecessary to consider the other questions which were discussed by counsel upon the argument, and there should be judgment for the plaintiff on the demurrer, with costs.