William H. Tilford, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent

William H. Tilford, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent. Municipal corporation — not Halle for an ultra vires act of its officers — imprisoning persons in a house where there is typhoid fever—New York water supply territory. Where an act which is made the basis of an action against a municipal corporation was not within the scope of the power conferred by statute upon the corporation, the corporation is not liable for injuries which resulted from the act., although officers of the corporation may have expressly directed 'its performance. The complaint in an action brought against the city of Hew York alleged that the plaintiff’s son, who resided with him on his farm at Lake Mahopac, Putnam county, which was within the territory of the water supply of the city of Hew York, having been taken ill with typhoid fever, the defendant, by its officers or representatives, entered upon the premises in company with the deputy sheriff of Putnam county, ordered the plaintiff to remain in the house, placed the deputy sheriff in charge, and ordered the sheriff to arrest the plaintiff or any of the members of his family who attempted to leave the house, and that the plaintiff was in this manner restrained of his liberty for a period of three weeks. Under the provisions of section 27 of chapter 189 of the Laws of 1898, the commissioner of public works of the city of New York was authorized to take such measures as might be necessary to preserve from pollution and defilement all the sources of its water supply, and to accomplish this end he was empowered to enter upon any land on, adjacent or contiguous to any of the sources of.the water supply, and to abate and remove the cause of any pollution or defilement. Held, that the statute empowering the commissioner of public works to enter upon the lands in question, and to abate and remove any nuisances, gave him no power to interfere with or restrain or quarantine persons who lived upon the property; That consequently the city of New York was not liable for any damages which resulted from the act set forth in the complaint. Appeal by the plaintiff, William H. Tilford, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Putnam on the 15th day of June, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Putnam Circuit dismissing the plaintiffs complant. Wm. Church Osborn, for the appellant. Theodore Connoly and Terence Farley, for the respondent. [MAJORITY — Brown, P. J.:] Brown, P. J.: The plaintiff alleged in his complaint that in May, 1893, his son, who resided with him on his farm at Lake Mahopac, in Putnam county, was ill with typhoid fever, and that during that month “ the defendant, by its officers or representatives, entered upon the premises occupied by the plaintiff at Lake Mahopac, aforesaid, in company with a deputy sheriff of Putnam county, and ordered plaintiff to remain in the house aforesaid, and placed said deputy sheriff in charge of the house and persons therein, with orders to arrest plaintiff or any of his family who attempted to leave the same; ” that the plaintiff was illegally restrained of his liberty for the period of twenty-one days, for which detention and for the injuries sustained by reason thereof, a recovery is sought against the defendant. It would serve no useful purpose to enter into a discussion of the distinction between the public and private powers of municipal corporations as affecting corporate liability, or attempt to point out the line of demarkation between these powers. The most recent expressions of judicial opinion upon that interesting question will be found in Springfield Fire & Marine Insurance Company v. Village of Keeseville (148 N. Y. 46); Hughes v. County of Monroe (147 id. 49); The Mayor v. Workman (67 Fed. Rep. 347). The rule of law which controls this case is, that to establish municipal liability the act complained of must be one within the scope of the power of the corporation conferred upon it by statute. If the act complained of was committed outside of the authority and ¡lower of the corporation thus conferred, the corporation is not liable, although the officers of the corporation may have expressly directed its performance. (Smith v. City of Rochester, 76 N. Y. 506 ; Dillon on Mun. Corp. [3d ed.] §§ 968, 996 ; Tiedman on Mun. Corp. §§ 331a, 332, 333.) The plaintiff’s case, if sustainable in law, must find its support in chapter 189, Laws of 1893. For the purpose of construing that act we assume, although the fact does not appear in the case, that the plaintiff’s farm lies within the territory usually designated as the Croton watershed. The question presented is, therefore, does the statute referred to confer upon the commissioner of public works of the city of New York, as incidental' to the preservation from pollution and defilement of the sources of the water supply of the city, the power to do such an act as the plaintiff complains of ? The section of the statute to which we are referred as a source of this power is as follows: “ Sec. 27. The commissioner of public works of the city of New York is hereby authorized to take such measures as may be necessary to preserve from pollution and defilement all the sources of the water supply, whether the same be rivers or other watercourses, lakes, ponds or reservoirs situate in the counties of Westchester, Dutchess and Putnam, and to that end to enter in and upon, at any time within three years after the passage of this act, any or all lands near, on, adjacent or contiguous to any of the said sources of water supply, and to abate and remove the cause of any such pollution or defilement.” ■ This section clearly confers no power to arrest or quarantine persons. It empowers the commissioner to enter upon lands and abate and remove nuisances therefrom, but none to interfere with or restrain individuals living upon the property. The act of which the plaintiff complains, and which forms the basis of the cause of action set forth in his complaint, was, therefore, one wholly outside of any power conferred by law upon the-commissioner of public works, and for it the city was not liable. The judgment must be affirmed, with costs. All concurred. Judgment affirmed, with costs.