251 A.D. 514 | N.Y. App. Div. | 1937
Plaintiff appeals from an order dismissing his complaint at the close of his evidence in this action brought against the defendant city of Mechanicville for a breach of contract. No
“ Motion by Commissioner Paaschen, seconded by Commissioner Moore, due to the fact that John DeVito was under age that the contract be awarded to the next bidder, George Canfield. Motion carried.” The action is brought upon the theoiy that a contract was entered into on April twelfth, the memorandum consisting of the written contract signed by the plaintiff together with the written resolution appearing in the council record book signed by Commissioner of Accounts Moore. The court in dismissing the complaint adopted the argument of the city that the acts which I have detailed were preliminary negotiations and that a contract was not entered into and that the city acted within its rights hi
The plaintiff having signed the written contract prepared by the city, it only remained for the city to accept or reject his proposal and offer. With the slight modification (changing the date when the term began from May first to June first) to which plaintiff assented, the council accepted the proposal. It is immaterial whether the memorandum of acceptance by the city appears on the instrument signed by plaintiff or in the council minute book signed by the commissioner of accounts. The entry of the resolution in the minute book and the signature of the commissioner at the end of the minutes of the meeting was a written memorandum of the contract which complied with the Statute of Frauds (Pers. Prop. Law, § 31) as to contracts not to be performed within one year. (Argus Co, v. Mayor, etc., of Albany, 55 N. Y. 495; Marks v. Cowdin, 226 id. 138; Franklin Sugar Refining Co. v. Lipowics, 247 id. 465.) A contract made by a minor is not void but voidable only at the option of the minor. The obligation of the other contracting party is not lessened; the protection is for the benefit of the minor and the other party may not set up a defense of infancy. The city may not be heard to plead plaintiff’s lack of responsibility when, after full opportunity for inquiry, a contract had been made, which he had partly performed by the purchase of an ambulance. (Beardsley v. Hotchkiss, 96 N. Y. 201; Casey v. Kastel, 237 id. 305; Joseph v. Schatzkin, 259 id. 241.) As to the obligation of a State or a municipality, it has been said: “ There is not one law for the sovereign and another for the subject; but, when the sovereign engages in business and the conduct of business enterprises, and contracts with individuals, * * * whenever the contract, in any form, comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign is merged in the dealer, contractor and suitor.” (People v, Stephens, 71 N. Y. 527, 549; Danolds v. State of New York, 89 id, 36, 44.)
The city in its brief stresses the fact that plaintiff’s proposal was for two years beginning May first, and that the resolution awarding the contract fixed June first as the time the term was to begin, and argued therefrom that the minds of the parties had not met. Each must have had in mind that the contract would begin after the proposals and bids were received on May eighth, and after the awarding resolution was adopted on May twelfth, and further, plaintiff was present at the council meeting and after the contract, as modified, had been awarded to him, he assented by expressing his thanks and gratitude to the council.
The judgment should be reversed on the law, with costs, and a new trial granted.
Rhodes, Crapser and Heffernan, JJ., concur; Bliss, J., dissents upon the ground that the contract was not complete until the written agreement was signed, and that the city might rescind the award at any time prior to the execution of the written agreement.
Judgment reversed on the lav/, with costs, and a new trial granted.