Wooley v. City of Schenectady , 236 N.Y.S. 104 ( 1929 )

Whitmyer, J.

The action was brought to recover for architectural services, under a contract, dated May 21, 1923, between the defendant, through its mayor, and plaintiff’s testator, employing the testator to prepare plans, detailed drawings and specifications for and to superintend the construction of a school building, to be erected on a site between Euclid avenue and Broadway, in the city of Schenectady, N. Y. On February 21, 1923, the board of education of the city, by resolution, requested the common council of the city “ to authorize the Commissioner of Public Works and the City Engineer to employ an architect to prepare plans and specifications for an eight-room school building to replace ” the existing Bellevue School (Broadway Building), “ to be built upon the plot in a position to be indicated by the Board of Education.” On May 7, 1923, the common council adopted an ordinance which authorized the said officials to prepare plans and specifications, or to cause same to be prepared, and “ to employ such expert assistance as may be necessary for the purposes * * * and for the supervision of the work, * * * and the Mayor to enter into a contract therefor.” Pursuant thereto and ■ on May 21, 1923, the mayor signed a contract which was thereaftei approved by the commissioner of public works and the city engineer. The compensation of the testator was to be five per cent of the actual cost of the complete construction, except that it was to be a percentage thereof in case of abandonment or suspension for an indefinite period and in case only preliminary studies and general working drawings should be prepared and submitted. Testator made some preliminary studies and drawings. They were not submitted. The plans, -drawings and specifications were to be at all- times subject to the approval of the board of contract and supply. Such approval was not obtained. After the ordinance, the common council authorized bonds in the sum .of $160,000 for the building and the fees and later authorized additional bonds therefor. But the site and the-buildings were enlarged, testator’s preliminary work was not used, and the contract was canceled. The action followed. Article 33-A of the Education Law, as added by Laws of 1917, chapter 786, was then in force. Subdivision 3 of section 875 thereof provides that “ Whenever in the judgment of a board of education the needs of the city require a new building for school purposes * * * such board shall pass a resolution specifying in detail the necessity therefor and estimating the amount' of funds necessary for such purpose,” and subdivision 4 provides that “ no building shall be. constructed, remodelled or enlarged until the plans and specifications therefor are approved by the board of education.” These provisions were not followed. Subdivision 6 of section 875 of the law provides that “ In a city of the second class in which the common council, the board of estimate and apportionment and the board of contract and supply and the commissioner of public works or other city officials, or any one or more thereof, has the authority under the law in force prior to the time this act takes effect to erect, remodel, improve, or enlarge school buildings or to purchase supplies or real property for any school purpose, such officers, board or boards shall continue to possess such powers and duties and to perform such functions.” Chapter 481 of the Laws of 1908, “ An Act to provide for a department of public instruction in the city of Schenectady,” was in force at the time of the passage of but was wholly repealed by said chapter 786 of the Laws of 1917, except that section 7 thereof remained in force and effect in the city of Schenectady, by virtue of said subdivision 6 of section 875 of chapter 786 of the Laws of 1917, above quoted, and section 7 authorized the board of education to recommend to the common council the erection of any school building and provided that the board of contract and supply, when authorized thereto by an ordinance of the common council, should erect such buildings in the manner and upon the conditions prescribed in chapter 473 of the Laws of 1906. The board of education could have proceeded under the Education Law and, if it had, could have employed the testator to do the things requested without asking for bids. (People ex rel. Kiehm v. Board of Education, 198 App. Div. 476, 480, 481.) Apparently, the board intended to proceed under chapter 481 of the Laws of 1908, but, instead of merely making a recommendation to the common council, requested that body to authorize two officials, who had no power or responsibility in the premises, to employ expert assistance. Under the special act, the common council had power only to adopt or reject the-recommendation and, upon such adoption, had power only to authorize the board of contract and supply to proceed in the manner prescribed by the Second Class Cities Law. From that law (§§ 120-125) and the charter of the city (Laws of 1907, chap. 756, § 200) as it then stood, it is evident that all city activities relating to the performance of work or the purchase of materials are required to be carried out by contracts, to be entered into and executed by the board of contract and supply, in all cases where the expense is to exceed the sum of $250, unless by ordinance of the common council adopted by a vote of not less than four-fifths of all the members thereof and unanimously approved by the board of estimate and apportionment, it is determined to be impracticable to procure such work.or materials, or both, by contract, in which case the ordinance must designate the officer, board or department to procure same. (Second Class Cities Law, § 120, as amd. by Laws of ] 927, chap. 18.) And section 125, which provides that “ No person shall have power to make any purchase or contract any debt for which the city shall be liable unless specifically authorized by the provisions of this chapter/’ is a limitation of the power to purchase and contract. No such ordinance was adopted and the vote of the board of estimate and apportionment upon the ordinance, as adopted, was not unanimous.

Thus, the contract was illegal and the judgment should be affirmed.

Van Kirk, P. J., Hinman and Davis, JJ., concur; Hasbrouck, J., dissents, with an opinion.