Opinion
Argued October 4, 1887
Decided October 18, 1887
T.C. Cronin for appellants. Tunis G. Bergen for respondent.
The relator has mistaken his remedy. A judgment for costs recovered against the trustees of a school district in their official character binds the trustees individually, and may be collected by execution out of their individual property. (Code Civ. Pro. §§ 1927, 1929, 1931.) It was the same under the Revised Statutes (2 R.S. 476, § 108.) It is not a judgment against the school district, but it may, under some circumstances, constitute a district charge, to be paid by a tax on the district. The subject is now regulated by the statute (Chap. 555 of the Laws of 1864, Tit. 13, §§ 6-11.) It will appear by reference to those sections that where the action is brought or defended by the trustees of a school district by instruction of a district meeting, the costs and expenses incurred by the trustees and all costs and damages adjudged against them in the action, is made a district charge which "shall be levied by tax." (§ 7.) Where the action is brought or defended without any resolution of a district meeting, no obligation rests upon the district to indemnify the trustees for costs, charges or expenses, until a district meeting shall have found in favor of the claim and voted that a tax be assessed and collected for its payment, or unless on appeal to the county judge from the refusal of the district meeting to vote a tax, it shall be decided that the account in whole or in part ought justly to be charged on the district. (§§ 8, 9, 10.) The relator brought an action against the trustees of school district No. 6, town of Gravesend, to recover the unpaid part of a year's salary, under an alleged contract of employment for that period made between him and the trustees. The trustees in their answer put in issue the alleged contract. The relator recovered judgment in the action for $748.97 damages and costs, the costs in the judgment constituting about one-half the amount. There was so far as appears no direction or instruction of a district meeting that the trustees should defend the action, nor has the district in any way assumed any liability for the costs embraced in the judgment, nor has any application been made by the trustees to the inhabitants of the district to have the costs and expenses audited or allowed. The relator seeks to enforce by mandamus the payment of the costs in the judgment, out of funds of the district in the hands of, or under the control of the trustees. They have offered and stand ready to pay the damages awarded in the judgment. It is clear that the school district cannot, under the circumstances disclosed, be compelled to pay the costs awarded against the trustees. The relator has a personal judgment therefor, against the individual trustees, and the papers show that he has issued execution thereon, but whether it has been returned does not appear. It is unnecessary to determine whether the relator is entitled to retain his judgment for costs, in view of the certificate granted by the judge after the costs had been taxed and the judgment entered. But to enforce the payment of the costs out of the funds of the district, would subject the district to a claim for which, as the case stands, it is in no way liable. The scheme of the statute is to make the trustees of school districts individually liable upon contracts entered into in behalf of the district. For the purpose of the remedy by action they are treated as the individual contracts of the trustees. The district in certain cases is bound to indemnify the trustees. But the district owes no duty either to the trustees or to the other party to the litigation, to pay the costs of a litigation undertaken or carried on without its direction, until they shall have been audited and allowed in the manner pointed out by the statute.
The order of the Special and General Terms should therefore be reversed, and the proceeding dismissed.
All concur.
Ordered accordingly.