Ramson agt. The Mayor, &c., of New-York.

would be invalid, and granted an injunction restraining the action of the common council. I am, therefore, constrained to say, that the action of the committee, in the present` case, was in direct conflict with the charter, and without authority, and consequently void, and that their employment of the plaintiff's assignor, however meritorious the services he may have rendered, or reasonable the charges made, created no legal liability upon the defendants, and there can be no re covery against them therefor.

Another objection to such right of recovery, even if I am wrong in these views, exists, and which, I fear, is insurmountable; that is, that the act of employment of counsel by this committee is an executive act, which they were incompetent to perform.

It must be quite within the recollection of those who have interested themselves in the affairs of the city government, that prior to 1830, it was deemed a great evil, and one pregnant with most mischievous consequences, for the common council, or its committees, to exercise any executive functions.

That charter provided, that the legislative power of the corporation should devolve upon the board of aldermen and assistants, and that those two boards should together form the common council.

The 21st section of that charter declared, that the executive business of the corporation should thereafter be performed by distinct departments, and which it was made the duty of the common council to organize and appoint for that purpose.

These provisions would seem to have been so clear and specific, that their meaning could not have been misunderstood. Notwithstanding this express declaration of the legis lature, that thereafter the executive business of the corporation should be performed by distinct departments, and the common council were enjoined to organize those departments, the common council still continued to perform executive duties, and neglected to organize the departments. This state of things induced the action of the legislature in 1849, when an amended charter was passed. By it, the executive departments were

Ramson agt. The Mayor, &c., of New-York.

organized, the duties of each defined; and section nine thereof declared, that thereafter "neither the common council, nor any committee or member thereof, should perform any executive business whatever." This inhibition is plain and specific, and would seem sufficiently certain to remove all doubts of its meaning and intent.

It was well observed, in the case of Christopher (supra), that there may undoubtedly be some acts which do not come exclusively within either division of the powers of government, and which may, without violence to language, be classed under either head. But the common council have themselves given a practical construction to the meaning of this section, by the passage of an ordinance, permitting the counsel to the corporation to select such additional professional aid as he may deem requisite in the discharge of the duties of his office, with the consent of the mayor and comptroller. Now the plaintiff's assignor was not thus selected, but appointed to this duty by the special committee of the board of aldermen. I think it was one of the main objects of the legislature, in passing this charter, to divest the common council, its committees and members, of all patronage and business, other than legislative, with the exceptions contained in the charter; and that no contract like the one now under consideration, or employment, can create any legal liability upon the defendants. One of the executive acts condemned by this court in the case of Christopher (supra), was the employment by the committee of the board of aldermen, of an architect to prepare the plans and drawings for the rebuilding of the Washington Market.

Peterson, the architect thus employed, commenced a suit against the corporation, to recover compensation for the services thus rendered, in the New-York common pleas. That court held, that the employment by the committee of the board, did not create a valid contract, which was binding on the defendants, and gave judgment accordingly. I agree with the remark of the presiding judge of that court, in that case, that it, like the one now under consideration, appears to be a hard case for the plaintiff, and that it would be equitable that

The People ex rel. Graham agt. Northrop.

he should be compensated for the services which he has rendered; but the obstacles in the way of a recovery in an action against the defendants for such services, appear to me insurmountable.

Judgment for defendants.

SUPREME COURT.

The People ex rel. SAMUEL GRAHAM agt. DANIEL L. NORTHROP, Auditor of the City of Brooklyn.

The common council of the city of Brooklyn, on the 11th of April, 1855, adopted the following resolution:

"Resolved, that the sum of 500 dollars per year, commencing on the first day of January last, be appropriated to the commissioner of repairs and supplies, for the payment of the expenses of keeping a horse and wagon, which is required to enable him to discharge his duties, and the comptroller is hereby directed to pay the same in monthly payments, upon the certificate of the auditor." The relator, Samuel Graham, was duly elected commissioner of repairs and supplies, and took his office on the 1st January, 1857, and on the 2d of March, 1857, presented to the auditor for his official certificate, the bills for the preceding months of January and February, each for one twelfth part of 500 dollars, for payment of expenses in keeping a horse and wagon in the performance of his official duties as such commissioner.

The auditor refused to certify the bills, on the ground that the resolution awarded to the commissioner only his actual expenses in keeping a horse and wagon, and that the bills presented contained no statement of such expenses, nor any evidence that the sums claimed had been expended.

Held, that the auditor was wrong. The resolution appropriates the entire sum of $500 in gross; not (as the auditor supposed,) so much of it only as would be necessary to defray the actual expenses, not exceeding that amount. Besides, the auditor claimed to exercise a discretionary power, when he had none. Mandamus granted.

Brooklyn General Term, July, 1857.

Before S. B. STRONG, BIRDSEYE and EMOTT, Justices. APPEAL from an order at special term denying an applica

tion of the relator for a peremptory mandamus.

The People ex rel. Graham agt. Northrop.

JOHN M. VAN COTT, for relator.

NATHANIEL F. WARING, for defendants.

By the court-S. B. STRONG, Justice. On the 11th of April, 1855, the common council of the city of Brooklyn adopted the following resolution:

"Resolved, That the sum of 500 dollars per year, commencing on the first day of January last, be appropriated to, the commissioner of repairs and supplies for the payment of the expenses of keeping a horse and wagon, which is required to enable him to discharge his duties, and the comptroller is hereby directed to pay the same in monthly payments upon the certificate of the auditor."

The relator was elected commissioner of repairs and supplies, of that city, in November, 1856, for a term commencing on the first day of January, 1857. On the last-mentioned day, he entered upon, and has since continued in the discharge of the duties of the office. He has, during all that time, kept a horse and wagon, which he has devoted to the performance of his official duty. On the 2d of March, 1857, he presented to the auditor for his official certificate, the bills for the preceding months of January and February, each for the one twelfth part of 500 dollars, appropriated to the commissioner for the payment of the expenses of keeping a horse and wagon in the performance of his duties.

The auditor refused to certify the bills, on the alleged ground that the resolution awarded to the commissioner only his actual expenses in keeping a horse and wagon, and that the bills presented contained no statement of such expenses, nor any evidence that the sums claimed had been expended. An alternative mandamus having been issued, and a return made showing these facts, the relator applied at a special term, held in the county of Kings, for a peremptory mandamus requiring the defendant to certify his bills. The motion for a peremptory mandamus was denied, and the relator thereupon appealed to this court at the general term.

The sole question for our consideration is, whether the rela

The People ex rel. Graham agt. Northrop.

tor is entitled under the resolution to a sum in gross, or only to his actual expenses, in keeping the horse and wagon, not exceeding that amount? In terms, and I think in substance, the resolution appropriates the entire amount, not so much of it only as would be necessary to defray the actual expenses. The direction to the comptroller to pay the same, undoubtedly refers to the entire sum of 500 dollars. True, the word expenses is the last antecedent, but the requisition could not have referred to them, as they were not to be fully paid at all events, nothing over the specified amount. This construction is strenghtened by the retrocession of the allowance for the antecedent three months before the adoption of the resolution. As no particular account of the actual expenses dur ing that time had probably been kept, none could have been made out, and none could have been designedly required. Besides, the direction to make monthly payments is usual when there is a fixed compensation, but is seldom, if ever, given where the amounts depend upon contingencies, and may, and probably will, vary. If the amounts of such monthly payments should be according to the actual expenditures, and there should be a change in the incumbent during the year, injustice might be done to the newly appointed officer when the antecedent expenses had exceeded the ave rage. The same practical construction has been given to the act allowing the payment of the expenses of the justices of this court residing out of New-York, while holding courts in that city. (Ch. 374 of the acts of 1852.) The 6th section of that act authorizes the supervisors to pay to such justices such sum for expenses incurred thereby as may be proper and necessary. The board of supervisors subsequently adopted a resolution to pay the justices a specified sum for each day. I understand (for I have not myself had any experience on the subject) that the justices who have received anything from the critical comptroller of that city, have claimed and been allowed the specified amount, without reference to their actual expenditures. Those learned judges must have given a similar construction to a provision of the law strongly resembling