#### REYNOLDS v. PRESIDENT AND TRUSTEES OF THE VILLAGE OF OSSINING.

(Supreme Court, Appellate Division, Second Department.

March 3, 1905.)

1. Villages—Actions Against—Rejection of Claim ry Trustees.

An action against a village for services rendered at the request of its board of health will lie, though the trustees, the auditing board of such claims, have rejected the claim.

2. Same—Board of Health—Employing Counsel.

Pub. Health Law (Laws 1893, p. 1502, c. 661, § 21), providing that a village board of health may employ such persons as shall be necessary to enable it to carry into effect its orders and regulations, does not authorize it to regularly employ counsel, actions for penalties being required to be brought in the name of the village, and for its benefit, and the attorney for the village being the proper attorney to conduct them.

Appeal from Westchester County Court.

Action by Pierre Reynolds against the president and trustees of the village of Ossining for services as attorney rendered by plaintiff at the request of the village board of health, claim for which was rejected by the trustees, the auditing board. From a judgment for plaintiff, defendants appeal. Reversed.

Argued before BARTLETT, JENKS, HOOKER, RICH, and MILLER, JJ.

Samuel Watson, for appellants.

Pierre Reynolds, in pro. per.

JENKS, J.

This action is proper. Port Jervis Water Co. v. Village of Port Jervis, 151 N. Y. 111, 45 N. E. 388. I cannot find in the public health law express authority for the employment of attorneys by the local boards of health. The authorities cited by the learned counsel for the respondent do not sustain his contention. Thus, in Kent v. Village of North Tarrytown, 50 App. Div. *502,*64 N. Y. Supp. 178, the plaintiff rendered services concerning nuisances, and made a map of certain lands under water, and the court held that such information was necessary to the determination of whether there was a nuisance, that the services were within the contemplation of the statute, and laid stress upon that provision of section *21*which I shall hereafter notice. In People ex rel. Lester v. Eno, 84 App. Div. 55, 82 N. Y. Supp. 520, the services rendered were by a physician employed b)'- the board in a town threatened by smallpox. Griffith v. City of New York, 73 App. Div. 549, 77 N. Y. Supp. 176, involved clerical services to the board of health. In these cases the servicies were strictly, within the duties cast upon the boards of health, and the said provision of section 21 (Laws 1893, p. 1502, c. 661) was comprehensive enough to warrant the employment. We are also cited to Boyce’s Powers and Duties of Boards of Health, in which it is stated that this provision authorizes the employment of counsel, but no authorities are given. This provision of section 21 referring to the local board of health is: “It may employ such persons as shall be necessary to enable it to carry into effect its orders and regulations.” The complaint alleges work, labor, and services in trying lawsuits for and on the part of said board, *955in giving counsel and advice, and in drawing resolutions to aid and assist them in carrying out the work of said board. The plaintiff testifies that he did all work that he was directed to do by the board of health, attended meetings, gave advice, tried lawsuits instituted by the board of health for violations of ordinances of the board (criminal actions), that he appeared for the board when parties were cited to show cause why they did not carry out the orders issued by the board, drew resolutions, and in one matter, where the board had examined a building, drafted the resolutions and examined the law, examined the law as to the appointment and legality of the board, and attended court to find out and to inform the board “just what position they occupied, and what the result of a pending trial would be.” He also tried a case in the police court in which the board of health was a party. The fact that the plaintiff had been elected by the board as counsel, together with the nature of these services, makes it clear that they were rendered on the theory that the board had power to employ regularly an attorney and counsel. The authority must be found in the statute. First, then, is the specific provision of section 21, “It may employ such persons as shall be necessary to enable it to carry into effect its orders and regulations” warrant for such employment? It is not necessarily so, for the reason that the duties devolved upon the board are such as may properly require the employment of others than an attorney. The cases cited, supra, are instances thereof, and a reading of the law indicates that there are many duties which may require similar services. An instance may be cited to show that the statute itself contemplates such need. Section 26 authorizes such boards or their servants or employés to enter upon premises to suppress or remove a nuisance or other matter. I cannot but think that, if the Legislature had intended that the board might regularly employ counsel, it would have expressly so provided, as it did provide for a health officer (section 20), and for health and registering officers of the district (section 29), especially in view of the fact that it made provision for the institution of legal actions. Conceding that there might be instances where the services of one who was an attorney were in some special case required to enable it to carry out its orders and regulations, I am quite clear that the scheme of the statute does not contemplate either the appointment of a counsel or the employment of an attorney in the great bulk of the business shown by the record. I think that Board of Health v. Magill, 17 App. Div. 249, 45 N. Y. Supp. 710, which holds that the public health law requires that the actions authorized shall be brought in the name of the village, is well decided. If this be correct, I cannot see why the attorney and couñsel for this village, which the trustees were authorized to appoint (subdivision 21, § 33, c. 83, p. 115, Laws 1896), and who was in office during this period, was' not the proper attorney in such proceedings. This board of health was a local agency of the police power of the state, constituted by statute. People ex rel. Lester v. Eno, supra, and authorities cited. But the Legislature has not thereby set up an imperium in imperio. In Matter of Taxpayers of Plattsburgh, 157 N. Y. 78, 51 N. E. 512, the court held that a provision of the health law as to the expenses (section 30) must be regarded as in the nature of an amendment, or at least a part of all municipal charters, and further *956pointed out that in certain cases the village must co-operate with the-board in complying with its orders. The court further say, that the-general health law of the state does not abrogate methods of procedure-. required by village charters. Further, section 21 of the law authorizes-the board to issue warrants to the peace officers of the municipality. And the cost of maintenance of such board is directly cast upon the village which does not raise and intrust a fund to the administration of its board of health. These provisions and the authority cited are strong indications that the Legislature set up these local boards in the exercise of the police power, contemplating that they would be articulated with the local government, and not separate corporations, coincidentally existing in the same territory as did the village government, but wholly distinct and separate therefrom. If actions for penalties must be brought in the name of the village, if the recoveries must be paid to the village, if all the expenses of the board of health (and. consequently all legal expenses) are a charge direct upon the village, and the village has a standing corporation attorney provided for by the-municipal charter, no good reason appears, when the statute is silent,, why the board of health should appoint or employ its own attorney in. all legal matters, at an additional expense to the municipality; and the logic of circumstances makes against such a scheme. On the evidence-it is clear that the bulk of the services rendered were such as could and should have been rendered by the corporation attorney in "his legal capacity.

The evidence is meager as to certain services which may possibly have been required in some peculiar and special instances “to carry into effect the order and regulations of the board.” And it is too-meager either to modify the judgment and affirm it as to such services,, or to hold absolutely that such services might not have been thus required. If they prove to be such, however, as a corporation counsel of the village could, as a lawyer, have rendered, then there can be no-recovery. The plaintiff, then, cannot recover for such services, or for services in prosecution upon ordinances, or for .services as counsel to-the board, or for services in attending at court to advise as to the legal status of the board, or the outcome of a lawsuit. I only advise a new trial for the reason that there may have been some-peculiar special service fairly within the provisions of section 21, ut supra, which may have been exceptional, and without the general rule which I have sought to-indicate.

Judgment reversed, and new trial granted; costs to abide the event. All. concur; HOOKER, J., not voting.