5 Abb. N. Cas. 51 | N.Y. Sup. Ct. | 1877
In view of the magnitude of the interests which are necessarily involved in this case, it may not be improper for me to state a little more in
[After some remarks upon the evils of this system, the learned judge continued as follows :] Among those departments is the department of docks. We find that the department of docks has certain duties which are confided to it, namely, the construction of the piers and bulkheads of the city of New York, which are necessary for the commerce of the city. They have also confided to them the repairing of piers and bulkheads, and the dredging out of slips, and at the time this new department was instituted, it was intended that there should be a new plan, or a permanent law for the improvement of the water front of the city, devised. As a result of that idea, when the department of docks was first instituted, that plan was infused into the system of the department of docks. I think it was under the charter of 1870,
We find that within a month after that, in the same year, anew, separate, and independent act was passed
Subsequent to the hearing of the case at the general term, the complaint has been amended, and the question has been raised by an amended' answer, as to the legality of this contract.
The complaint has been amended so as to cover not only a claim under the contract, but a claim on the ground of a quantum valebat, and the answer has been amended alleging fraud, and that the contract was illegal and had no legal existence, so as to found any liability upon it.
That brings me to the consideration of the evidence as relating to that defense. We find the evidence to be this upon the part of the plaintiff. We find that prior to the time this contract was entered into, the commissioners of the dock department adopted a resolution, by which they provided that, as far as the work which was carried on upon the new plan was concerned,
We also find that they have gone on, as I have already said, working under this new plan, making new constructions under this new plan, under that resolution, doing the work by day’s work and making contracts for the purpose of purchasing materials. The way in which the materials were furnished to the dock department, under that contract made with the plaintiff, seems to be this : That the engineer-in-chief, or the engineer in charge, certified to the dock department, what material would be wanted — coming within the terms of the contract. We find that then the treasurer of the dock department, if he was present, and if not, one of the commission of the dock department, issued a requisition upon Bigler & Co., and the timber was sent to the place designated by the requisition, and it was there inspected by .the official inspector of the dock department, and the timber was accepted as complying with the requisition, both in quality and dimensions, and was then put into these structures by the workmen employed by the dock department. It is to be borne in mind, that this timber put into these docks, consisted, if I understand it right, of that portion of the piers which was above the water, with the exception of the columns, which took the place of piles for the purpose of mooring the ships. Instead of using a single pile, they bound together 10x10 timber, and they were sunk, making piles twenty inches square, and some eighty or ninety feet long. Instead of being a single stick of timber, it was a number fastened together for the purpose of making this sort of a pile.
Upon that state of facts, the counsel of the corporation has moved to dismiss the complaint, and alleged several grounds of dismissal. One was, that upon the
What are his grounds upon the question of the legality of the contract %
1st. That no full and minute specifications were made as the basis for the proposals for any of the work.
2nd. That even if the specifications were good, the advertisement was not for doing said work under said plan or plans.
3rd. That the proposals of the plaintiffs were not accompanied by any bonds of the form set forth in the specifications duly executed.
4th. The contract contained no provision as to time within which any work should be done or material furnished,- — but simply a time within which the department might make requisition for material. This was simply providing a time within which the commissioners of docks, by their private act, might purchase of the plaintiffs, materials at fixed prices.
5. The contract contained no provision for the retention of at least one-fourth of the contract price until the completion of the deliveries, as security for its performance.
6th. And no provision for the forfeiture of it for
7th. No quantities annexed to the items of materials in the specifications, nor in the advertisement, nor in the contract.
8th. No quality of material specified in the contract.
Further, it is not in point of fact a contract for the purchase of material made after any advertisement and public letting.
No recovery can be had on bills not proved as having the certificate of Mr. Turner, the superintendent of repairs and supplies, there being no proof of waiver by the department.
In this designation of grounds, it would seem to have been the claim of the corporation counsel that the contract which was made with Bigler & Co., should accord with the requirements of the dock department law. He has raised, however, in his motion for a dismissal of the complaint, another ground, namely, that if it does not comply with the dock department law, and is- not governed by the dock department law, it is governed by the general law of the city of New York, regulating the entering into of contracts by the different heads of the department. That ground, it seems, is not at.all well taken. I think the regulation of any contract to be entered into by the dock department, is governed by the organized law of the dock department, and is exempt from any restrictions contained in the charter relating to other departments,
The answer which is made by the plaintiffs to this position of the corporation counsel, seems to be this, as I understand it. That under the resolution made by the dock department, or which was, as they claim, authorized by the act of 1871, to be made, the dock department, in the doing of this work, and in the purchasing of this material, were not governed by the rules or regulations of the dock department, governing the making of contracts. That by the resolution which they adopted, they were authorized to do this work by the day’s work, that they were authorized to purchase this material in anyway which they saw fit, and might make a contract in any way they saw fit, and neither the regulations embraced in the revised ordinances, nor the regulations embraced in the act regulating the power of the dock department, apply to a contract made in that way, because they had adopted a resolution certifying that they should do certain portions of the work by contract and certain portions by day’s work, and there are no provisions of the dock law that related to a transaction of that description. They also claimed that if there was no contract made, the dock department had a right to purchase this material in open market, and that any orders they gave to Bigler & Co., could be sustained by claiming he was entitled to recover upon the quantum, valebat, they having been ordered by the dock department in open market, which they had a right to do.
In order to consider these propositions it is necessary to look at the various acts by which the dock department came into existence.
The charter of 1870
“ The work of such construction, under said plan or plans, shall be performed by contract, as follows.” It then goes on and designates that there shall be certain specific plans that shall be first made, and then advertisements for proposals shall be made, giving those specifications, and the contract shall be made in accordance with those specifications, and providing for certain other particulars, in accordance with which the contract must necessarily be made. Now, in 1871, as I say, probably it being found that by such a cast-iron contract system it was not possible for the work of the construction of the new plan to' be carried on, that portion of the section was amended to read as follows :
“The work of such construction under said plan or plans, unless ordered to be otherwise performed by the affirmative votes of four members of the board, shall be performed as follows.” And then follow the same provisions in regard to the form of the contract and proposals, and plans and specifications as existed in the act of 1870.
In other words, the alteration seems to have been
In pursuance of the powers which were granted to them by that act, we find they adopted the resolution which has been testified to by Mr. Westervelt, namely: that they resolved that the work for these piers, at least that, as far as the work upon these piers was concerned, the labor should be done by day’s work, and the material furnished by contract. I don’t think the necessities of this act require that the general resolution in regard to all the work, was necessary for the board to act upon. They could say: “We will construct the piers in a different way from that which the law requires,” because, I suppose, that would be a compliance with that designation; the law does not require that they should construct all the piers in the same way. But I think the construction of this act requires this to be said : that after they have adopted one system of construction in regard to one particular part of the work, their power of designation is gone ; that is to say, if they have, under this provision, directed the work to be constructed by day’s work, as far as the labor is concerned, and by contract, as far as the material is concerned, they have designated the way in which the work is to be performed, and they cannot exceed it.
Therefore, there cannot be any change, as far as any particular structure is concerned, by the dock department, in the system of work. They must determine how it is to be constructed beforehand, and, having so determined, they must carry out that plan, and construct it in accordance with that plan, whatever it may have been, either according to the law, or according to the plan which they may have determined upon,
That brings me to the direct consideration of the question involved in this question. We find the dock department has determined by their action, that the work upon these piers shall lie done by day’s work, and the materials furnished by contract. Now, what is meant by that ? And there is the only difficulty there is in this case. What rule in regard to the making of contracts, is to apply to a contract of that description ? It will be seen, by an examination of the act specifying the particulars of the contract, what it is necessary the plans and specification should contain ; that it would seemingly be intended to apply to the whole structure, not only to the work, but to the work and material, both. It was claimed on the part of the counsel for the plaintiff, that the use of the word “work,” might relate only to the labor, but I don’t think any such construction could be placed upon it. The use of the word “ work,” means the whole structure. When you talk about the work on the piers, to make a contract in regard to the piers, means the work and materials for the piers, for the whole structure, and that seems to be the idea in fixing the regulations as applicable to the contract, for the work to be performed under this contract. Now, by the regulations of the dock commissioners they took the labor out of the act. Did they leave the material in it % It seems to me they did. It seems that is the only construction which can be placed upon their acts. They are author
Now, if that is true, the contract in this case does not accord with the provisions of the law. It may be a curious thing, but the fact is, that in regard to this contract, after it was entered into by Bigler & Co., the city could not have been held for a single dollar, nor could Bigler & Co. have been held for a single dollar. If the city made a requisition for any amount of lumber on Bigler & Co., and they refused to furnish it, they could not be held for a dollar. That is the condition of that contract, and upon my calling attention to the terms of the contract, it will be seen that the contract is particular, to determine what the penalty for default upon the part of Bigler & Co., shall be, and what is it ? That the city shall be able to deduct from anything that might be due to Bigler & Co., whatever the material would cost in case they went out in the market and bought it. Suppose, after the contract had been given to Bigler & Co., they refused to furnish a stick of timber, that they could not do it and make any money by it, where would there be any cause of action against Bigler & Co., for any damage that the city might sustain? They could not recover a cent, because there was nothing due them, and suppose he got half way through the contract, and got one-half of his money, and they made an order upon him for lumber, and he said he would not deliver any more, they could not deduct anything from him because there would be nothing to deduct from ; therefore, as far as the question of contract is concerned, it was no contract at all. The city was not bound to order, nor were Bigler & Co. bound to furnish, a stick of timber.
It seems to me that this contract must be governed by the law regulating the dock department, that it does not comply with the dock department law, and that it is illegal and cannot be enforced.
In regard to the question of quantum, meruit, I have said that could not be considered in this case. It has been claimed that the city of New York has possession of these materials, that it comes within the case of Nelson v. Mayor,
How are the facts in regard to this case ? These piers were erected. It was offered to be proved, and we must assume the fact, for the purpose of this question, that the city did realize a rental from those piers, but the rental is not money which is raised for the purpose of paying the contractor for the labor and material which he had furnished for the work, and, therefore, it is to be distinguished from the case of Nelson
Therefore, if we come to the conclusion, that this contract must be regulated by the provisions of the dock law, there can be no recovery on the ground of the quantum meruit. I desire to state here, and to have it taken down as part of the record in this case, that the sole question which is decided here, is in regard to the legality of this contract, that no question has been passed upon in regard to the performance of the contract. [Further remarks enforcing this limit are omitted.]
Complaint dismissed.
1 L. 1870, p. 378, c. 137, §§ 30, 99.
L. 1870, p. 907, c. 383, §§ 32-44.
As to this distinction, see Kingsley v. City of Brooklyn, 1 Abb. N. C. 108.
See Guidet v. The Mayor. 13 Hun, 566, 568.
1 Laws of 1870, p. 373, c. 137, § 99.
1 Laws of 1870, p. 907, c. 383, §§ 32-44.
2 Laws of 1871, p. 1335, c. 574, § 6.
See Eno v. Mayor, &c. of N. Y., 68 N. Y. 214, rev’g 7 Hun, 320.
One who furnishes materials, &c., on a contract made without the preliminary certificates or advertisements required by law, cannot recover on the mere ground that the city has had the benefit of them. Though it may be otherwise, if the city has collected, by assessment, the money to pay for them. McDonald v. Mayor, &c. of N. Y., 68 N. Y. 23 ; Nelson v. The same, 63 Id. 535, rev’g 5 Hun, 190.
A county court made an order appointing a commissioner to let the building of a bridge to some contractor who would wait for his compensation “until the amount is received from the State out of the road and canal fund.” The commissioner let the contract to A., who entered into a bond which recited the order and contained an agreement “ on the part of the county court, as said court,” to pay a certain sum when the work was completed, provided that, “if there be not a sufficient amount of the dividend of the road and canal fund on hand, at the time of the completion of the bridge, the said undertaker is to wait on or indulge the said county, by receiving of said county as fast as said funds shall arrive.” When the work was completed, A. received a warrant on the county treasurer, “payable out of the road and carlal fund.” This was assigned to the plaintiff. Held, that the plaintiff could look only to the road and canal fund, and could not compel the county to pay out of its own proper funds. Pettis County v. Kingsbury, 17 Mo. 479.
Contracts for work, the expense of which is to be assessed, — Held,
63 N. Y. 535.
See act of Congress of 1820, § 6, 3 Stat. at L. 568.
Compare Clark v. U. S. 95 U. S. (5 Otto) 539; and Hawkins v. U. S., 96 Id. (6 Otto) 689.