Ellis v. Mayor of New York

1 Daly 102 | New York Court of Common Pleas | 1861

By the Court.

Hilton, J.

The corporation- through its Street Commissioner, contracted with one Keyes to set the curb and gutter, and grade 54th street, from Third to Fourth Avenues. Keyes assigned the contract to the plaintiff, who performed the work and Inis been paid the price agreed upon ; but he claims to be entitled to payment in addition, for work" dime upon- the street, not mentioned in the contract, bus directed by the Street Commissioner.

■It appears that after the contract was made, the grade of Thin! Avenue was changed by order of the corporation, and ti, bring the grade of 54th street up to that fixed for Third Avenue, the Street Commissioner directed the plaintiff to fill in with extra earth beyond that which the contract required Isim to furnish. For this the referee has allowed $210, and I ran see no objection to his having done so ; as it did not involve ;ut expenditure of more than $250, it was within the power of the Street Commissioner to cause to be done without subjecting it t-i public competition, as required by sec. 12 of the charter of 1853. See Laws, p. 41; see also Corp. Ordinances, 81, § 6.

The evidence clearly shows that the sum allowed was a fair compensation for the work thus performed by the plaintiff, and to this extent his claim is valid. I cannot, however, arrive at a similar conclusion with regard to the other items which form the subject of the plaintiff’s claim in this suit.

It is shown that while the filling in of the street was progressing, the Street Commissioner told the plaintiff to put up a protection or retaining wall for the purpose of supporting the earth thus put upon the street, and the reason for this wall being ordered was, that without it the work of the plaintiff would be in danger of being washed away with the first heavy rain, although it was testified to that the plaintiff could have performed his contract for filling in the street if the wall had not been built. The wall, put up at intervals along the street, was all directed to be done at one time, and was a continuous work. It must, therefore, he regarded as falling within the prohibition of sec. 15 of the charter of 1853. To hold, as the plaintiff’s counsel contended on the argument, that the wall thus built being in four detached pieces, should he considered as four separate and distinct employments, each under $250, would be to declare in effect, that a positive prohibition in-the charter might be evaded and nullified by a plan »o simple that it could scarcely be considered as rising to the C'gnity of a trick; as I can hardly imagine any work required o v- the corporation to be done, that could not thus be divided into ¡•arts sufficiently small as to make the expense of doing each part ‘■'.'¡no within the prohibition. Tile plaintiff’s contract, even, would have been unnecessary, and indeed the entire streets of ■ ■ city might be paved by the Street Commissioner without

utract and without subjecting the work to public competition, if sucli a palpable violation of the law as is shown in the present case should he allowed to prevail.

A remaining item of $200, shown to have been the value of two stone receiving basins, put up in the street by the plaintiff, at the request of the Street Commissioner, must also be disallowed, but for another and different reason.

Bv the charter of 1849, sec. 12, the Street Commissioner is declared to have cognizance of only that part of street improvements which consist in their “ opening, regulating and paving,” while by sec. 15- of the same charter, the Executive Department known as the Croton Aqueduct Board, is invested with the u charge of the aqueduct and all structures and works and property connected with the supply and distribution of water to the city of New York, and the underground drainage of the same, and of the public sewers of said city,” &c. The constructing of receiving basins, which are works connected with the sewers, and forming as they do part of the means by which underground drainage of the city is effected, is plainly not within the duties of the Street Commissioner. He had, therefore, no power to make any contract with the plaintiff respecting them. See ord. organizing depart, §§ 350, 356, 357.

The Street Commissioner who, in some respects, may be regarded as the agent of the corporation, is not, however, such an agent as can hind his principal generally. He is an independent public officer, acting*under special statutory authority, but controlled by the ordinances of the corporation. Charter of 1849, § 31. Therefore, like one acting under special instructions from which lie cannot depart, and of which parties dealing with him are presumed and bound to have knowledge, he cannot bind the corporation except in respect to those acts which fall within his limited duties and authority. Smith v. City of New York, 4 Sand. 221; Brady v. The Mayor, &c., of N.Y., 20 N. Y. Repts. 312.

The judgment should be reversed except as to 0210, the expense of Tiling in the street, with interest thereon from Hay 15,1855. For that amount it should be affirmed without costs of the appeal to either party.