121 N.Y.S. 860 | N.Y. Sup. Ct. | 1909
On the 16th day of August, 1905, the plaintiff and defendant made a contract whereby the plaintiff agreed to erect a pumping plant and infiltration gallery at Massapequa, to he paid for according to an agreed schedule of prices for the items of work done. The estimated amount of the contract was $327,800. On the 14th day of November, 1905, the same parties made a supplemental contract for the installation of manholes and pumping stations at an estimated cost of $7,160. During the progress of the
As the city has received the benefit of the work done by the plaintiff, principles of justice would seem to require that he should be paid therefor. The Legislature evidently contemplated that cases may arise where claims are illegal or invalid because created in contravention of statutory requirements and yet that justice, propriety and the best interests of the city may be subserved by their payment; and it has therefore conferred upon the board of estimate and apportionment power to adjust and pay such claims. Laws of 1907, chap. 601. This authority is not conferred upon the courts, whose power in an action at law is limited to determining whether the claim is valid under the statutes regulating the manner in which legal obligations of the city may be created, for a municipal corporation can act only in the manner prescribed by the law of its creation.
Section 419 of the charter of Greater Hew York provides that, whenever any work is necessary to complete or perfect a particular job or any supply is needful for any particular
The question is whether liability for the work in question has been incurred pursuant to the authority of any of these provisions of the charter. If the work performed is for the purpose of completing a contract already awarded and the expense thereof does not exceed five per centum of the amount of such contract, liability therefor may be created by the order of the said commissioner; and I believe this may be so, even if the amount of such extra work exceeds the sum of $1,000, provided it be not more than five per
. As the city is not liable on the theory that the extra work was additional work performed pursuant to the order of the department or the commissioner, the question remains whether any other provision of the charter can be invoked to sustain the plaintiff’s claim. The question is two-fold: First, as to the claim for connecting and testing the Elliott and Marren wells, the amount of which exceeded $1,000; second, as to the claim for other work amounting to less than $1,000. The provision that contracts involving the expenditure of more than $1,000 can be made only upon competitive bidding is a limitation upon the power of the city to make such contracts. The omission of competitive bidding is the omission of a substantial requirement and not a mere irregularity. It is the omission of a requirement which enters into the character of the contract itself and
As to those items of the claim in which the amount is less than $1,000, a different rule applies. No competitive bidding is required, but the charter provides that no expenditure involving less than $1,000 shall be made unless the necessity therefor be certified to by the appropriate head of department and the expenditure he duly authorized and appropriated. This provision is not so substantial in its nature as that requiring that the contract be made only upon competitive bidding, and yet it is a limitation upon the authority of the officials of the city to contract. The provision requires as a condition precedent to making the contract that such official shall not only authorize the expenditure,
There is a line of cases in which it is held that a sudden emergency may arise in which prompt action is essential to protect life or property, under circumstances which make it impossible to comply with these provisions of the charter. It is argued that such an emergency existed in the present case, but I cannot so decide upon the evidence. It has not been shown that it would not have been entirely practicable to follow the requirements of the charter in authorizing the work in question.
The inclusion of these items in the progress certificates does not affect the question. These certificates are given to determine the amount of partial payments to be made to the contractor from time to time. They were temporary and provisional in nature and not binding on the city under the terms of the contract itself. The engineer cannot bind the city by certifying that it is liable for work when it is not.
The extra Avork was not additional work done for the purpose of completing the contract; it Avas not done pursuant to. a contract founded upon competitive bidding, and the necessity therefor was not certified to by the head of the appropriate department. The city, therefore, is not liable.
Judgment for the defendant, with costs.