225 F. 947 | 2d Cir. | 1915
(after stating the facts as above). This action has been brought against a public corporation to recover compensation for work done in the construction of portions of a public sewer. The court below has dismissed the complaint, and a question has been raised which is of great importance to these parties.
“It seems to us more in conformity with the general frame of the state government that the prosecution of a work which exceeded the domain of any one municipality should be conferred upon the next higher political organization which was capable of performing-it and within whose territory lay the whole improvement.”
Assuming, then, that the contract made by the Bronx Valley commissioners is the contract of Westchester county, and that the obligation is the county’s obligation, and that the plaintiff is tire creditor of the county, we come to inquire whether he can assert his rights in this action.
The question raised here has already been passed upon in an analogous case by the Court of Appeals of New York. The provision of the County Taw of the state provides for the bringing of actions by or against a county, and that a person having a claim may either sue directly upon it or present it to the supervisors for audit. The meaning of the provision was determined in New York Catholic Protectory v. Rockland County, 212 N. Y. 311, 106 N. E. 80 (1914). The court held that, if the claim there in suit was submitted for audit and disallowed erroneously, it could only be corrected on a review by certiorari; but if the hoard refused to audit it, or refused to recognize it, which the court said was equivalent to a refusal to audit, then the person having the claim had two courses open to him—one to compel an audit by mandamus, the other to bring an action directly against the county. The pleadings in the case at bar show that the claims of the plaintiff were submitted to audit by the board of sewer commissioners, as required by the act authorizing this work, and that audit was refused. If the claims had been audited and disallowed, then under the foregoing decision this action could not have been brought. The proper course would have been to review the disallowance by certiorari. But, not having been disallowed, we discover no reason why this suit could not be brought.
In view of the conclusion at which we have arrived, it is not necessary to consider the technical objection which counsel has raised, and we shall pass upon the reason given by the court below for its decision. The court said:
“Suck a judgment would be unlawful, because it is a greater and wider judgment than this plaintiff can ever be entitled to. There is no method suggested—and none occurs to me—by which in an action at law the authorities of the county of Westchester, or any of them, can be compelled to confine the tax levied, necessary to pay the plaintiff’s demand (assuming it to be just and properly established), to the limited area which alone is responsible. It follows that this action at law is ill brought, and proceedings in equity must be resorted to.”
We think the reason assigned constitutes no justification for holding that the plaintiff is not entitled to a judgment against the county. Under contracts which expressly provide that contractors are to be paid for public work out of assessments levied on the particular property benefited, the courts have held, in cases where the assessment has not been made, or, having ’been made, has failed because of some irregularity, that judgment may be had against the corporation, leaving it to take steps thereafter to reimburse itself for the money which it has been compelled to pay out of its general funds, by levying the proper assessment upon the special property benefited. And even if a public corporation has lost its power to make a subsequent assessment, that fact is no reason for declining to enter judgment against it. In Dillon on Municipal Corporations (5th Ed.) vol. 2, p. 1255, that distinguished authority states it as his opinion that:
“Where a contractor is to be paid by assessments, and the city has lost the power to make the assessments through the neglect or act of its officers, subsequently to the making of the contract, and without the fault of the contractor, a general liability attaches to the city to answer to the contractor for the resulting damages; the loss to the contractor therefrom being usually measured by the stipulated price.”
It is true that the act' under which these contracts were made provides for meeting the expenses connected with the work by the issuance by the county of bonds to' be paid for by assessment and levy of taxes “upon the real property laid out on the plan and map approved as set forth in section 2 of this act as modified by this act, and not by levy upon the entire property in the county of Westchester.” But the right which the creditor has to obtain payment from the county is not to be confused with the right of the county to obtain funds with which to pay his claim. The manner in which taxes can be paid to pay off the bonds related to the internal management of the corporation, and cannot affect the plaintiff’s right to obtain a judgment upon his claims. In Davidson v. Village of White Plains, 197 N. Y. 266, 90 N. E. 825 (1908), Chief Judge Cullen writes:
“That tbis principle is correct cannot be gainsaid, but we must be careful to distinguisli between a provision of law that prescribes how a creditor of*953 a municipal corporation may obtain payment oí bis claim and one which simply prescribes the method by which the corporation is authorized to obtain funds with which to pay the claim, merely regulating internal management of the corporation itself.”
In Reilly v. City of Albany, 112 N. Y. 30, 19 N. E. 508 (1889), an action was brought upon a contract to recover for grading, paving, and flagging a street in the city of Albany. The contractor had substantially performed his contract in accordance with its termsj and was entitled to recover unless the provisions as to the time and mode of payment specified in the contract presented a defense to the action. It was contended that those conditions had not been complied with, and that therefore no liability had attached at the time the action was commenced. Under the terms of the contract the expense of the improvement was to be apportioned among the parties benefited, who were to be assessed for the sums for which they should be found liable. Payment was not to be made until the lapse of 30 days after due apportionment and assessment had been duly approved and confirmed by the common council of the city, and “until the same shall have been collected by the chamberlain from said assessments.” In that case the cost of the improvements was to be paid by the city out of funds raised by an assessment upon the property of the locality benefited. The board of contract and apportionment made an. apportionment and assessment which the common council approved and adopted. Interested parties protested the apportionment and assessment and the council’s ratification of it. The matter was taken into the courts, and the proceedings were set aside as invalid. The board of apportionment refused to make a new apportionment or assessment. Thereupon an action was brought against the city to recover the contract price for the work. The action was sustained, and a judgment obtained against the city, which the Court of Appeals affirmed. The court held that, as the contractor had performed his work—
“lie became entitled to demand payment for his labor when the funds for that purpose should be assessed, levied and collected by the regular agencies of the city having authority to raise means to discharge its liabilities. * * * When the contractor had performed his work according to his contract, he had no duty remaining to discharge, and then liad a right 1o rely upon the implied obligation of the city to use with due diligence its own agencies in procuring the means to satisfy his claims. It could not have been supposed that he was not only to earn his compensation, but also to set in motion and keep in operation the several agencies of the city government, over whom he had no control, to place in the hands of the city the funds necessary to enable it to pay its obligations. That was a power lodged in the hands of the city, and the clear intent of the contract was that it should exercise it diligently for the purpose of raising the funds necessary to pay Cor the improvement. For an omission to do so it would become'liable to pay such damages as the contractor might suffer by reason of its neglect of duly. Cumming v. Mayor, etc., of Brooklyn, II Paige, 596; Sage v. City of Brooklyn, 89 N. Y. 189; McCormack v. City of Brooklyn, 108 N. Y. 19 [14 N. E. 808].”
And the court declared that after the original apportionment and assessment was set aside it was the plain duty of the board to proceed to a new apportionment and assessment, and that its refusal to do so put no duty upon the contractor to seek a reversal of its determination by mandamus or otherwise. If the reason assigned by
In our opinion the liability under the contracts involved is the liability of Westchester county. If it does not rest upon the county, it rests nowhere, for no political subdivision of the county has been created upon which the burden is imposed. The court below seems to have relied upon Holroyd v. Town of Indian Lake, 180 N. Y. 318, 73 N. E. 36 (1905). That case construes a different statute,' chapter 451 of the Taws of 1900 of the state of New York. That act provided that the town board might establish a water district, and a permanent district organization was provided for the construction and maintenance of the water supply system, and the reasonable expenses were made a charge against the district. The action was brought against the town to recover damages for breach of a contract made by water commissioners of the water district. The court held that the action could not be maintained, for the reason that the contract was not made by the town, or by its officers, or for its benefit. • The statute provided that a town might be sued upon a contract lawfully made by any of its town officers. The water commissioners, with whom the contract was made, the court said, were not town officers, and—
“their powers are limited to the construction and management of a water plant for the exclusive benefit of the water district. They do not act for the town, and no action on their part can make the town liable.”
We think the facts of that case clearly distinguish it from the case at bar. In this case no political subdivision of the county has been created; no sewer district as a corporate entity distinct from the county has been established. The sewer commissioners, by the express language of the act which created them, act “for the county of Westchester,” and, as said in Horton v. Andrus, supra, they acted for the benefit of Westchester county in constructing a county sewer “for general benefit of the inhabitants of the county. The prosecution .of such an improvement would be a county purpose.”' As the work was done by the county through its agents, the board of sewer commissioners, and for a county purpose, and as the title to the sewer is in the county, we are unable to discover any reason why the county should not pay for it. The plaintiff was working for the county, and is entitled to have its pay from the county. The plaintiff is not interested in the parties from whom the county collects. That is a matter between them and the county. There is no justification in holding up the plaintiff, who has done the work, until the persons who are to pay the county are ascertained, and the amount assessed against each.
The order is reversed.