#### GOUVERNEUR PAULDING and others, Respondents, *v.*GEORGE COOPER and others, Appellants.

*Contracts by piiblio officers*— duties *of, as to payment*— when *personally liable thereon*— *Effect of a clause in contract exempting officers from personal liability.*

The defendants, commissioners appointed under chapter 720 of 1869, were authorized thereby to borrow §10,000, and, in addition thereto, to issue town bonds, not exceeding §20,000 per mile, to widen, grade and bridge a highway known as the eastern boulevard, the town authorities being directed to deliver the bonds to them as they might be needed. The plaintiffs contracted with the defendants to build a bridge upon said highway for $19,864, to be paid in bonds. Upon applying to the commissioners for payment, after the completion of the work, they were informed that all the bonds authorized by the act had been issued to other persons for constructing the highway.

In an action by the plaintiffs to charge the defendants personally with the amount due under the contract, *held,*that they were entitled to recover.

*Held,*further, that their right to recover was not affected by the facts that the contract was made by the defendants as commissioners and not as individuals, and that it contained a clause providing that they should not be held to any individual liability whatever.

Appeal from a judgment in favor of tbe plaintiffs, entered upon tbe trial of tbis action by tbe court without a jury.

Tbe action was brought to charge tbe defendants personally with tbe amount due under a contract entered into by them, as commissioners of tbe eastern boulevard of tbe town of "Westchester, for tbe construction of an iron bridge. Tbe contract was made *“*between Abraham Hatfield, George Cooper, Hugh Lunney and Thomas Jay Bryne, not as individuals but as a body corporate, commissioners of tbe eastern boulevard of tbe town of Westchester, in tbe county of Westchester and State of New York, acting under authority of tbe law of tbe State of New York (chapter 120, 1869), parties of tbe first part,” and concluded as follows:

*“*Inasmuch as tbe said commissioners, parties of tbe first part, are acting in a public capacity, they shall not be held to any individual liability whatever; and, also, inasmuch as tbe road is needed for public use without unnecessary delay, tbe party of tbe second part covenants to perform tbis contract within tbe stipulated time.”

*Odie Olose,*for tbe appellants.

*Osem'*Bmedbmg, for tbe respondents.

The reservation in tbe contract exempting tbe defendants from individual Lability has no *21force whatever. *(Fwrnimal*v. *Ooombes,*5 Manning *&*Granger, 136.) When an individual sustains an injury by the misfeasance or nonfeasance of a public officer wbo acts, or omits to act, contrary to bis duty, the law gives redress to the injured party by an action adapted to the nature of the case. *(Adsit*v. *Brady,*4 Hill, 630 ; *Bobmson*v. *Chamberlain,*34 N. Y., 389; *Fulton Fine Ins. Co.*v. *Balckoim,*37 id., 648; *Hover*v. *Bcurkhoof,*44 id., 113; *Btioks*v. *Bow,*42 id., 47; *MoCa/rthy*v. *City of Syracuse,*46 id. 194; *Joforuson*v. *Belden,*47 id., 130 ; *Clcurk*v. *Muller,*54 id., 528; *Meriel*v. *Wymonsold,*13 Oar. II, Hardres’ R., 205; *Horsley*v. *Bell*[1778] ; 1 Brown’s Chancery Oases, *n, 101;*S. 0., Ambler’s R., 770; 1 Brown’s Parliamentary Oases, 396 ; *Higgins*v. *Limingstone,*4 Dow’s R., 341; see at pp. 355, 356; *Burrell*v. *Jones,*3 B. & Aid., 47; *Lambert*v. *Knott,*6 Dowling & Ryland, 122; *Pwrrott*v. *Eyre, 10*Bing., 283; *Cullen*v. *Duke of Quemsberry, 1*Brown’s Chancery Oases, 101; *Ayjpleton*v. *Binks,*5 East, 148; *Lancaster*v. *Tucker,*1 Bing., 201; *Bwrls*v. *Smith,*7 id., 705; *Doubledcuy*v. *Muskett,*7 id., 110; *Hoskin*v. *Slaton,*Hardwick’s Oases, 360.)

BaeNAjíd, P. J.:

The legislature, by chapter 720, Laws of 1869, authorized the town of Westchester, in Westchester county, to borrow $10,000 and to issue bonds of the town, not exceeding $20,000 per mile, to widen, grade and bridge a highway in that town, known as the Eastern boulevard.

The defendants were appointed commissioners to widen make and construct the same. The work was required by the act to be done by contract. The commissioners were to make the contracts, and could, by the provisions of the act, require security for the faithful performance of the work by any contractor. The work could be done in sections, at the option of the commissioners. The town authorities were required to deliver to the commissioners, from time to time, as might be needed, bonds of the town for the purpose of the improvement of the highway. Under this act the defendants, as such commissioners, in the manner provided by this law, contracted with the plaintiffs to erect an iron bridge over the Westchester creek for the price of $19,864, payable from time to time as the work progressed, in the bonds of the town. The plaintiffs *22completed tbe bridge under tbe contract, and did tbe extra work incident thereto, and wben tbe work is completed they are told tbat all tbe bonds bave been issued wbicb tbe act permitted, and tbat there is no fund with wbicb to pay plaintiffs for tbe bridge. I think tbe defendants are plainly personally liable. Tbey are public officers. They were charged with tbe duty of keeping tbe work within tbe limit authorized by tbe act, and whenever a contract was made tbey were charged with tbe duty of keeping tbe amount necessary to perform it. Tbe contract made an appropriation, and it was tbe duty of tbe commissioners to keep it inviolate. Tbe defendants must assume one of two positions, and either will uphold this action. Tbey either contracted with plaintiffs in excess of their power, or tbey contracted with sufficient funds, and suffered those funds to be appropriated to other purposes. It was a violation of duty in either case. Tbe plaintiffs bave lost their labor and materials by it. Official neglect, and loss thereby to tbe plaintiffs specially, are thus made out. *(Adsit*v. Brady, 4 Hill, 630; *Robinson*v. Chamberlain, 34 N. Y., 389; *Fulton Fire Insurance Co.*v. Baldin, 37 id., 648.)

Tbe defendants, commissioners, made a contract with one Dunn to build tbe abutment on wbicb tbe bridge was to be placed, and tbe approaches to tbe bridge. This work was carried off by tbe flood, and tbe commissioners aver and prove tbat tbey were compelled to expend $3,651.08 in replacing it. I think tbe fact clearly irrelevant to tbe plaintiffs. Tbe defendants were bound to take such means as would provide for tbe execution of tbe contract by tbe Messrs. Dunn. Tbey might take security or tbey might pay after work completed and tests made, or in some other way. Tbe plaintiffs were charged with no duty in regard to it. Tbe defendants could not use tbe money appropriated to pay plaintiffs, to rebuild tbe abutments. Tbat would be incurring an obligation subsequent to plaintiff’s contract, whereby tbe fund appropriated to meet it was impaired.

■The judgment should be affirmed, with costs.

GxlbbRt, J., concurred; DyemaN, J., not sitting.

Judgment affirmed, with costs.