Kings County NyArchives Court.....Payne, Robert Vs. City Of Brooklyn 1889
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Source: Reports Of Cases - New York
Written: 1889

Second Department, May Term, 1889.

ROBERT PAYNE, MICHAEL CHAUNCEY and WILLIAM E. S. FALES, Respondents, v. THE CITY 
OF BROOKLYN, Appellant.

Commissioners of estimate and assessment — right of action against the city for 
their fees.

The complaint in this action alleged that, at the instance and upon the 
application of the defendant, the plaintiffs were appointed by the Supreme Court 
commissioners of estimate and assessment in the matter of improving Fourth 
avenue, Kings county; that they accepted the offices, performed the duties and 
made a report, which the defendant received from the commissioners upon the 
express promise that the city would pay the commissioners' fees when the report 
was confirmed; that the city procured it to be confirmed and refused to pay the 
fees. 

Upon an appeal from a judgment overruling a general demurrer interposed by the 
defendant:

Held, that as the commissioners' fees were made a part of the expenses, and 
chargeable upon the lands benefited by the improvement, and as, when the report 
was confirmed, the city had the power to raise the fund, and promised to pay the 
commissioners from this source, there was sufficient stated in the complaint to 
support the promise to pay, even if the money had not been actually collected 
when the promise was made.

That, as the plaintiffs had a joint right of action, they could unite in a 
common action to recover it.

Appeal by the defendant from a judgment entered upon an order made at the Kings 
County Special Term, which was entered in the office of the clerk of Kings 
county on the 15th day of March, 1884, overruling a demurrer interposed to the 
complaint in this case, and adjudged that the plaintiffs recover of the 
defendant $544.10.

The action was brought to recover certain fees due to the plaintiffs who had 
been appointed commissioners to examine into and report upon the improvement of 
Fourth avenue, a public thoroughfare in Kings county, who had qualified, entered 
upon the discharge of their duties, executed the same, made a report in the 
premises and notified the defendant thereof, and of their fees and 
disbursements, amounting to $405.

The plaintiffs alleged that the defendant agreed to pay the plaintiffs said sum 
immediately upon the confirmation of said report by the court, and that the 
plaintiffs thereupon delivered said report to the defendant; that thereafter, at 
defendant's request, said report was ratified, confirmed and approved by the 
court, and that, nevertheless, the defendant had neglected and refused to pay 
said sum of $405 to the plaintiffs.

John A. Taylor, for the appellant.

William E. S. Fales, for the respondents.

Barnard, P. J.:

The complaint states that, at the instance and upon the application of the 
defendant, the plaintiffs were appointed by the Supreme Court as commissioners 
of estimate and assessment in the matter of improving Fourth avenue, one of the 
streets of the city. It is further stated therein that they accepted the office 
and performed the duties and made a report therein, which the defendant received 
from the commissioners upon the express promise that the city would pay the 
commissioners' fees when the report was confirmed. That the city procured such 
confirmation and refused to pay the fee. To this pleading there is a general 
demurrer.

The improvement of Fourth avenue, under the defendant's charter, was required to 
be made in this way: The commissioners' fees are made a part of the expense, 
and, as such, chargeable upon the lands benefited by the improvement. The usual 
method is to pay out of the moneys collected as the result of the assessment, on 
the basis of the report. When the report was confirmed the city had the power to 
raise the fund, and promised to pay the commissioners from this source. We think 
the city could legally do this. The service had been rendered substantially at 
the request, and certainly for the benefit, of the defendant. The sole power to 
collect the money was given to it, and this is sufficient to support the promise 
to pay, even if the money had not been actually collected when promise was made. 
It was a city asset which could be anticipated by the city if an affirmative 
agreement was made for that purpose. The plaintiffs have a joint right of 
action. When parties have a common interest in the money they can unite in a 
common action to recover it. (Marshall v. Moseley, 21 N. Y., 280.) 
The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order overruling demurrer to complaint and judgment thereon affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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