Adee v. Arnow , 98 N.Y. Sup. Ct. 329 ( 1895 )

DYKMAN, J.

This action has for its object the cancellation of a tax lease made by the town of Westchester to the defendant Ar-now, under the claim that it is a cloud upon the title of the plaintiff to certain lands belonging to him in that town. The summons was served upon the supervisor and town clerk of the town of Westchester on the 3d day of June, 1895. On the 6th day of June, 1895, Henry C. Henderson, an attorney and counselor at law, served a notice of appearance for the town in the usual way, upon the attorney for the plaintiff. On the lStli day of June, 1895, Seward Baker served notice of appearance for the defendant Arnow on the plaintiff’s attorney; and on the same day the latter served a copy of the complaint in the action upon each of the attorneys who had appeared as above stated. On the 21st day of June, 1895, Baker served a notice of appearance for the town upon the plaintiff’s attorney, which the latter returned by reason of the former appearance of Henderson. Baker also served an answer for the town on the 11th day of July, 1895, which was returned. On the 13th day of July, Henderson served an answer for the town; and on the 14th day of September, 1895, an order was made, upon the motion of Mr. Baker, requiring the plaintiff’s attorney to accept the notice of appearance by him for the town of Westchester. From that order we have this appeal. Mr. Henderson was employed by the board of town officers to defend the suit for the town, and Mr. Baker was employed by the supervisor of the town, and the question for solution is, which employment is regular, or, in other words, who had the authority to employ counsel to represent the town in the action?

In the towns of this state, many old things have passed away. By a recent statute of the state, the governing board of the towns is the town board. Laws 1892, c. 685, § 1. And the supervisor, town clerk, and the justices of the peace, .or any two such justices, constitute the town board of each town. Laws 1892, p. 2258. The functions of a governing board of a town must be the government of the town. All of the internal affairs of a town must be under the control of the board of town officers, so far as official action can go. Of course, the inherent power of the people is left undisturbed and unlimited, and there is no restriction upon its action in a public town meeting. Each town is constituted a municipal corporation, and the business of the town must be transacted by the corporate officers, or, as they are now called, the “governing board.” An exception is created to the general rule by subdivision 2, § 80, art. 4, c. 569, of the town law, where it is provided that the supervisor of the town shall prosecute in the name of the town for all penalties given by law for its use, and for which no other officer shall be directed to prosecute. Ho authority is bestowed upon him to prosecute or defend any other action. As a member of the town board, the supervisor has no more or greater authority than any of the other officers who are members thereof, and neither of them can legally act independent of the other, or outside of the board. It is highly essential to the interests of the town that all questions respecting litigation should be determined by a governing board. It may or may not be for the interests of the town to prosecute or defend suits, and the determination of such questions requires the exercise of judgment and discretion. The governing board is constituted for all such purposes, and their power should not be limited or restricted by construction.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, to be paid by the supervisor. All concur.