130 N.Y.S. 705 | N.Y. App. Div. | 1911
The parties contracted for the construction of sewer basins by plaintiff at prices related to the several elements of the work. The contract was performed and the plaintiff paid, but the performance of the work required certain sheathing, and the contract contemplated that its fulfillment would either allow or permit the removal of sheathing. Defendant’s officers deemed it advantageous to keep in place certain sheathing, although they recognized plaintiff’s right to withdraw it, and proper official action was taken to purchase it on behalf of the. defendant at the sum of $522.92. The certificate, known as the certificate of necessity, was signed by the commissioner of public works, rather than by the president of the borough, and in an action brought to recover for this material the defendant, among other things, objected that the certificate was improperly executed, and the complaint was dismissed.
Section 383 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 383) provides that the commissioner of public works, in the absence, or illness, of the president of the borough, shall discharge "all the duties of such president, and also that the powers conferred and duties imposed upon the president may be exercised and performed by the commissioner of public works “upon the request of said president,” or if such commissioner shall not have been appointed, then such powers and duties may be exercised and performed “ by any subordinate duly appointed by the president of said borough under the powers conferred upon him by this act, and duly designated thereto in writing; and such powers and duties when exercised or performed by such commissioner of public works or other appointee shall be regarded as having been exercised or performed by such
The judgment and order should be reversed and a new trial granted, costs to abide the event.
, Jerks, P. J., Burr, Carr and Woodward, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event. ,