John Vincent, Appellant, v. The County of Nassau, Respondent

John Vincent, Appellant, v. The County of Nassau, Respondent. Second Department, January 12, 1906. Municipal corporation—supervisors cannot employ attorney on general retainer. . In the absence of special legislative authority, a board Of supervisors has no power to employ counsel under a general retainer, at- a yearly salary. Counsel can be employed only, when actual need of such services arises. ' .< Hence, ah attorney cannot recover against the county’on such general retainer. '■> An- attorney employed by a board, of supervisors must obtain an audit of his dis- ■ bursements by such board before a recovery therefor can be had from the. ■ county, and such board cannot audit disbursements except in connection, with actual litigation. Appeal by the plaintiff, John Vincent, from a" judgment of the. Supreme Court in favor of the defendant, entered in the office of ■ the clerk of the county-of Nassah on the 23d day of January, 1905, upon the decision of the court, rendered after a trial before the court without a jury at the . Nassau Trial Term, dismissing the complaint upon the merits. , ■ Edward J. McGuire [Charles G. ,Sanders with him on the brief], for the appellant. George B. Stoddarf, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The "plaintiff, whose complaint has been dismissed, and who appeals from the judgment of dismissal, is an attorney at law, and seeks in this action to recovera balance alleged to be due him under an employment by the board of supervisors of Nassau,- county. : The plaintiff washappointed as counsel to the board of supervisors on the 21st day-of April, 1903, and on the twentydifth day of May-of" the same year the board of supervisors adopted a resolution to the effect “ That, the salary of John Vincent as counsel to tins Board be. fixed at Two thousand' -dollars per annum from April' 2lst, 1903, payable quarterly, in addition to- costs collected by him in all litigations and proceedings in which he may appear by reason of our retainer.” "Under this general retainer the plaintiff acted for the board up to November, 1903, when the board adopted a, resolution dispensing with, his services. On the 28th of March, 1904, the board passed a resolution revoking the resolution of November 25, 1903, and reinstating the plaintiff as counsel to the board, under' which reinstatement the plaintiff concededly performed all of the services required of him up to the end of the year for which he was originally designated.- He was paid- in full for his services up to the 21st day of October, 1903, but the remaining services, during the time that he was suspended, and after his reinstatement, have never been paid for, and he brings this action to recover upon the alleged contract of employment, it not being claimed that the board of supervisors -of Nassau county had any power to create the office of counsel to the board. Hpon the trial-the court dismissed the complaint upon the grounds (1) that the board of supervisors had no power to create the office of counsel to the board, and that, therefore, there could be no recovery; and (2) that the plaintiff was bound to present liis bill of disbursements (which was included in his claim) to the supervisors for audit, and could not, therefore, recover for same by action against the county. The plaintiff appeals. It is not claimed that there is any authority for creating the office of counsel to the board, and we are unable to find any warrant in law for a general retainer, such as is here attempted. There is no doubt that the county of Nassau, as a municipal corporation, having the capacity to sue and be sued, has the incidental- right to retain counsel whenever it has any litigation (People ex rel. Gardenier v. Supervisors, 134 N. Y. 1, 5, and authorities there cited), but it is quite another matter to involve the county in an indebtedness by a general retainer, when there may be absolutely no business for a lawyer to transact. In People v. Supervisors of Delaware County (45 N. Y. 196, 201) the court, in discussing a similar case, say: “ If the board of commissioners of excise had not power, by a general retainer, to authorize the relator to commence actions unspecified, then they had not power by such retainer to bind the county for his services upon such general retainer. For-as agents they could bind their principal only when acting within the scope of their authority. And if the action against Sackrider had gone no farther than the judgment in the County Court, we should hold that the county was not liable for the relator’s services therein.” In the absence of direct au thority on the part‘of the Legislature to a board of supervisors to' generally retain counsel, it seems clear to us that the incidental power to employ counsel can arise only when there is actual need of his servicesin behalf of the county, and that in such a case liis compensation belongs to the class of contingent expenses, which must be audited and allowed by the board of supervisors, (People v. Supervisors of Delaware County, supra, 199 ; People ex rel. Board of Suprs. of Ulster County v. City of Kingston, 101 N. Y. 82, 96, and authorities there cited.) ■ , ' It seems equally clear to us that the plaintiff’s disbursements are in the class: of contingent expenses, depending upon the audit of the board of supervisors, and that there was no power in the board of supervisors to make any contract of general retainer which would warrant the plaintiff in making these disbursements, except in connection with, actual litigation which could authorize his employment) (See Brady v. Supervisors of New York, 10 N. Y. 260) The judgment appealed from should, be affirmed,, with costs. Hibsohbebg, P. J,, Jénks and Rioh, JJ., concurred. Judgment affirmed, with costs, j