Smith v. City of New York , 289 N.Y. 517 ( 1943 )

On June 14, 1938, the City Council of the city of New York adopted a resolution designating seven of its members as a special committee to look into the local handling of emergency unemployment relief. The Board of Estimate of the city twice refused to make an appropriation for the expenses of such an investigation. Plaintiff, a stenographer, thereafter reported the proceedings of the committee on the faith of its promise that for work actually done he would be paid "at the approved and customary rate for that type of service." In an action against the city for the value of his services ($747.25), he had judgment which was unanimously affirmed. We gave the city leave to appeal. The controversy is one as to the scope and effect of various provisions of its municipal charter. (N.Y. City Charter, effective Jan. 1, 1938.)

Section 891 provides: "No agency shall incur a liability or an expense for any purpose in excess of the amount appropriated or otherwise authorized therefor; and no charge, claim or liability shall exist or arise against the city, or any of the counties contained within its territorial limits, for any sum in excess of the amount appropriated or otherwise authorized for the particular purpose." Sections 121, 122, and 123 provide that the Board of Estimate has in the first instance the duty to make appropriations for the governmental purposes of the city. The Corporation Counsel stands on these provisions. His main point is this: The Council is an agency of the city and so the plaintiff's case fails for want of an appropriation by the Board of Estimate to cover the services rendered by him to the special committee of the Council.

For an answer, the plaintiff invokes sections 21 and 43. Section 21 says: "The council shall be vested with the legislative power of the city, and shall be the local legislative body of the city with the sole power to adopt local laws under the provisions of the city home rule law or otherwise, without requiring the concurrence of any other body or officer except as provided in sections thirty-eight, thirty-nine and forty." (§§ 38, 39 and 40 have no relevance to the present case.) Section 43 makes these provisions: "The council shall have power from time to time to appoint a special committee to investigate any matters relating to the property, affairs or government of the city or of any county within the city. Any such committee shall have power to require the attendance and examine and take the testimony under oath of such persons as it may deem necessary." We think the plaintiff is obviously right in his contention that such legislative functions of the Council cannot be deemed to be defeasible by means of a mere failure of the Board of Estimate to concur in an appropriation for the necessary expenses thereof.

In Chambers v. City of New York (286 N.Y. 308), we held the city liable for reasonable expenses of an exercise by the Council of its duties of organization and procedure as defined by section 30 of the Charter, though no appropriation for such expenses had been made by the Board of Estimate. On a contrary view, as we there said, the Board of Estimate would have a power of life or death over the Council — a result which, of course, was never intended. So in the present case, as we believe, the fundamental design of the Charter requires us likewise to decide that the Council does not act as a departmental agency of the city when it exercises its legislative power by way of an investigation conducted pursuant to section 43.

Under section 43 the special committee was to take the testimony of such persons as it deemed necessary. By the resolution of the Council the committee was specifically directed "to examine and report" in respect of a number of detailed specifications of possible abuses in the local management of emergency unemployment relief. This extensive commitment could not have been discharged without the aid of a shorthand reporter. Hence the power of the committee to engage the services of the plaintiff was clear enough — unless indeed that power (as the city suggests) was here annulled merely because the resolution included a provision authorizing the committee to request that an appropriation for its expenses be made by the Board of Estimate. This last idea is quite refined and, as we apprehend, fails to take proper account of still another provision of the resolution which called upon all departments of the city government to cooperate with the special committee. We do not find any sufficient expression by the Council of an intent that its competent legislative action was in this instance to be subject to immediate administrative interdiction by the Board of Estimate. (Cf. Chambers v. City of New York, 286 N.Y. 308.)

The judgment should be affirmed, with costs.