Citation Numbers: 54 How. Pr. 255
Judges: Daly
Filed Date: 11/15/1875
Status: Precedential
Modified Date: 2/5/2022
Action for work, labor and materials furnished in repairing the school ship Mercury, pursuant to contract with the commissioners of the department of charities and correction. Defense — that contract was not made after public advertisement for bids and proposals (charter of 1870, sec. 105; charter of 1873, sec. 91); that only two of the commissioners signed the requisition upon the comptroller for the payment of plaintiff’s claim (charter of 1870, secs. 100, 101, 102, 105); that the work, labor and services were only worth the sum of $16,000. Plaintiff recovered the whole amount claimed.
It appears that the school ship Mercury was a vessel owned by the department of charities and correction, in use as a school for the reformation of boys under the charge of said
In September, 1873, two of the commissioners of the department (the other refusing to sign) certified that they had examined the bills of plaintiffs specified in the schedule annexed, amounting to $23,011.48, and that they were just and correct; that the articles enumerated in said bills had been received in good condition by and for the necessary and exclusive use of the said department; that the prices charged therein are reasonable and proper, and that the amount of said bills do not exceed the unexpended balance of the appropriation duly made to the said department therefor.
I think it may properly be urged that the repairs ordered by the commissioners do not come within the provisions of the charter of 1870 (sec. 105), or of the charter of 1873 (sec. 91), not being work' or supplies “ furnished for the corporation,” i. e., for the mayor, aldermen and commonalty of the city of Kew York. The management of their department by the commissioners of charities and correction was, in that respect, wholly independent of the common council. The department, in the care and management of the paupers and criminals confided to it, and in the care of boys whose custody for purposes of reformation devolves upon it by law, act not as agents of the municipal corporation, but as public officers, agents' and servants of the public at large (Maximilian agt. The Mayor, 62 N. Y., 160).
But the conclusions which establish that this was not work done for the corporation, through its agents, nor for the benefit of its property, and that the provisions of the charter as to making the contract, advertising, etc., do not apply, dispose of the question of ultimate liability of defendant against the view taken by plaintiffs in bringing this action. I am not able to see how an action can be maintained against the corporation for work not ordered by it or its agents, and not rendered upon or in respect of its corporate property, but done at the request of the public officers discharging the duties of the state, in this particular locality,to wards the pauper and criminal classes. The case of John B. Greene agt. The Mayor, etc. (Ct. Appeals, Mch., 1875; 60 N. Y., 303), presents a different case. There a contract was directed to be made by the corporation; through its commissioners of public works, for laying certain water pipes, and the provisions of the charter did not apply because of the terms of the special act (chap. 213, Laws of 1871) authorizing the work. The corporation was liable, because the contract was made in its name and in respect of its property, and it was specially authorized by the act to raise the money to defray the expense.
In this case the disbursement of the moneys raised and appropriated for the department of charities and correction is made by the comptroller upon certificates of the department.
If there be no such money, or if the appropriation be expended upon the drafts of the department, no payment can be made. If no such appropriation has mer been made, upon what principle is the corporation liable to action, judgment and the seizure of its private property to satisfy the claim ? In this case it clearly appears that the necessity for the repairs to the school ship arose suddenly and were not discovered until' April, 1873. There had certainly been no estimate made in the preceding year by the department for such contingency and forwarded by them to the board of apportionment (charter, sec. 112), nor any money raised applicable to the purpose. Without such proof the plaintiff fails to establish a case against the city, if, indeed, with such proof the action may be maintained. The city may be sued upon all its contracts and all corporate liabilities, and by the consolidation act of 1873, for all matters formerly of county charge, and within the jurisdiction, as such, of the board of supervisors of the county of Hew York; but the expense incurred by the department of charities and correction for these repairs does not fall within those terms. The money raised by the supervisors annually for the expenses of the department is in lieu of all taxes in the county for the relief and support" of the poor thereof, and for the support and expenses of the county criminals (act of 1860, chap. 510, sec.
I concur: F. W. Loew.
Judgment reversed and new trial ordered, costs to abide event.