Cuyler vs. The Trustees of the Village of Rochester, 12 Wend. 165

By the Court, Nelson, J. The 25th

section of the act of 1826, sess. 49, p. 127, incorporating the village of Rochester, provides that if the board of trustees neglect, on demand, to pay the sum assessed as damages to any individual, caused by laying out or widening any street, the party thus entitled to the sum assessed may sue the board of trustees, and recover the same in an action of debt on mutuatus, with interest and costs. This shit is brought by the plaintiff under this section, to recover $2000 assessed to him. The defendants have pleaded numerous pleas in defence, to all of which, except the first, the plaintiff has demurred. It will be material only to notice the third plea. By the 21st

section of the act, the trustees are prohibited from laying out or widening any street, so as to run across or over the site of any house or building, the expense of removing which shall exceed $100 ; and this plea is founded upon this provision, averring that the street, as altered, run across or over the site of a building, the expense of removing which exceeded that sum.

There is an admission in the plea, that the owners waived any objection to the alteration, so far as the jurisdiction of the trustees was concerned; and this is supposed by the counsel for the plaintiff to neutralize the force and effect of the plea. This case has been before the court on a motion to quash a certiorari, and also to amend the return of the trustees thereto, on which occasion the chief justice considered this provision of the act, and gave, in my judgment, the true exposition of it. 6 Wendell, 564.

He held that the consent of the owners did not give jurisdiction to the trustees, as all the corporators had also an interest in the question, being liable to pay the assessment or expense, and the prohibition in the case where the expense of removing the building exceeded $100, was as well for their benefit as for the benefit of the owners of buildings. It was intimated in that opinion, that if the owners had stipulated to remove the building for $100, jurisdiction would have been given.

This may be so, but in case of a failure to perform such stipulation by the owners, I apprehend the loss would fall personally on the trustees ; for in no event is the corporation to be subjected to an expense beyond the one hundred dollars. It is supposed, by the counsel for the plaintiff, that the consent given necessarily implied that the owners would accept the $100 and remove the building; but the language used rather repels such an inference.

The intent to be derived from the whole, I think, is, that the owners would waive the objection which the statute afforded them, and permit the street to be widened, leaving their claim for damages open, to be ascertained according to the statute. If it had been the intention or expectation of either party that the expense of removing the building should be limited to the $100, it would have been very easy and natural to have said so.

Be this as it may, as the fact of the limitation of the expense to the $100, and not the consent of the owner, is what gives juris-' diction, if at all, it should have been made distinctly and unequivocally to appear, and should not have been left to inference or conjecture. This is a familiar rule of pleading.

For aught that appears before us, if the jury, in the assessment of damages an[j expenses, had allowed to the owners the whole expense of the removal of the building, we could not say it was erroneous ; as we think the better opinion is, that the owners, by the consent given, did not intend, nor did it necessarily carry along with it, a limitation of the expense. It is said the trustees ought to be estopped from setting up the want of jurisdiction, after they have taken the property of the plaintiff, as it is taking advantage of their own wrong, to his injury.

The answer is, that this suit is not against them, but against the corporation; and if a recovery is had, the corporation must pay the amount. By the first

section of the act, all the freemen, inhabitants within the limits of the village, are declared to be a body corporate and politic, by the name of “ The trustees of the Village of Rochester,” and in that name they and their successors are capable of suing and being sued, pleaded, and being impleaded, &c. The trustees, in executing the duties imposed upon them by the charter, act as agents of the corporators, and the latter can be bound only when the trustees act within the scope of their powers. Then they are bound and may be sued; but they can be sued only in their corporate name.

If, under the idea that the trustees, and not the corporators, were the parties sued, the doctrine of estoppel was to be applied, there can be no imaginable excess of power on the part of these officers, for which the corporation would not be responsible. This cannot be.

The true exposition is, that all the duties imposed upon, and powers granted to the corporation, are to be executed through the instrumentality of agents, the chief of whom are the trustees ; and all suits against the corporation in the corporate name, though in form against the trustees, are against the principals themselves, who, like all other principals, may depend themselves on the ground that the act by which they sought to be made responsible was done without authority.

The charter prescribes the powers of the trustees, beyond which they cannot go; if they do, they act as individuals, and not in the character of trustees, and their proceedings of course are inoperative and void. The consequence in this case is, that the land for which the damages have been assessed, and are ought to be recovered by the plaintiff still belongs to him, as there has been no valid devotion of it to the uses of a public Street.

The demurrer is put in to the eight last pleas, and if either plea constitutes a good bar to the cause of action, the defendants are entitled to judgment, though the residue may be defective. I do not find this point expressly adjudged in any case, or laid down in any elementary book on pleading. Cases, however, strictly analogous have been decided, which 1 think afford sufficient authority for the above conclusion.

If there be several counts in a declaration, or several breaches are assigned in an action of covenant, some of which are good and others bad, and the defendant demurs to the whole declaration, judgment is given for the plaintiff. 1 Chitty, 643. 5 Bac. 458. 11 East, 565. 2 Johns. Dig. 219, Demurrer. But what, if possible, is still more decisive, where a plea contains distinct matters divisible in their nature as a plea of set-off of separate and distinct demands, if the plaintiff demurs to the whole, though

part is bad, the defendant will be entitled to judgment on the whole plea. The demurrer being overruled, as not well taken, leaves the entire plea unanswered. Powdick v. Lyon, 11 East, 565. In Dowsland v. Thompson, 1 Wm. Black. 910, the defendant pleaded to an action for freight of a vessel, that the goods were injured on board by the negligence of the plaintiff, whereby he became indebted to the defendant in the sum of £10,000: he also pleaded a general set-off of £10,000 for work and labor, &c. To this plea there was a demurrer and joinder.

The court overruled the demurrer, on the ground that the different parts of a plea of set-off were to be viewed in the light of different counts in a declaration, and as one point of the plea was good, though the other was bad, the demurrer could not be sustained. The principle of these cases was recognized and applied in the case of Douglass v. Satterlee 11, Johns. R. 22. See also 1 Chitty, 643. It seems to me impossible to distinguish the case of a demurrer to two pleas, one of which is sufficient to bar the action, and the other bad, from the principle so fully settled in the above cases.

Many of the pleas in this ease are extremely informal; stt,ffed whh much unimportant matter, and tedious detail, and which would have been stricken out, on application, at the cost of the P]eader- Judgment for defendants.