95 N.Y.S. 752 | N.Y. App. Div. | 1905
The plaintiff, as assignee of one Jacob D. Butler, brought this action to recover from the city of New York the sum of $6,000, with interest from August 1,1899, for services alleged to have been rendered by said Butler under a contract as broker in connection
The College of the City of New York is a domestic corporation, organized and existing by virtue of a special act of the Legislature, being chapter 264 of the Laws of 1866, recognized and continued by section 1055 of the Consolidation Act (Laws of 1882, chap. 410) and section 1127 of the Greater New York charter (Laws of 1897, chap. 378, continued by Laws;of 1901, chap. 466). Each of those acts provides that it “ shall continue tó be a separate and distinct ■organization and body corporate.” It is a'part of the educational system of the.city.. At the time of the passage of the act of 1895,. hereinafter alluded to, the members of the board of education of the city, together with the president of the college, were ex officio the trustees of the said college. (Consol.. Act, § 1056.) By section . 194 of the Consolidation Act the board of estimate and apportionment was required to annually include in its final estimate, which was thereby and: by section 214 of said act required to be annually raised and appropriated by the board of aldermen, such sum as was ■ required by the trustees in accordance with .section 1059 of said act, not exceeding $150,000 per annum, for the payment of salaries of professors and ■ officers, for obtaining' .and furnishing scientific, apparatus, books foi* the students, and all other necessary supplies therefor, and for repairing and altering the college buildings, and for the support, maintenance and general expenses of said college, and by chapter 143 of the Laws of 1882 it was made the duty of the trustees to furnish gratuitously, as therein prescribed,, the benefit of éducation' to all male students residing in the city who should pass the required examination. Chapter 168 of the' Laws of 1895, passed March, twenty-seventh, to take effect immediately, is,entitled : “An Act to authorize the procuring of new grounds and the erection thereon of buildings for the use of the College of .the City • of- New York, and to provide the means to pay for the same, and x giving authority to its trustees;”' Section 1 of said act provides: “ The board of trustees,of the College of the City of New York is hereby authorized and empowered to select and acquire, in the name and on behalf of the mayor,, aldermen and commonalty of the city of New York, a site for a new building or buildings
Acting under said statute, the trustees selected a site and duly filed a map. On July 18, 1895', the board of trustees “ Resolved, That á sub'-committee consisting of the chairman be appointed to arrange with owners of property included within the new- site selected for the college and perfect, if possible,, the purchase of the same in compliance with the requirements of the act of the Legislature providing for the- new site.” On August 16, 1895, the executive .committee resolved “ that the matter of arranging with Jacob •D. Butler as to liis fees for securing thei site' in question by contract ■ or condemnation be referred'to the chairman of the executive committee and chairman of the board of trustees, with power.” On the twenty-third of August, the said two chairmen and Butler signed a paper which, after reciting the above resolution, proceeded: “ This agreement witnesseth: That the said Butler agrees with the said . executive committee and the said board of trustees that he will act as the sole representative of the said executive committee and -will use his best endeavors to secure 'for them the property embraced within the said site at private sale, and also will act as their repre^ sentative in condemnation proceedings if the same should become - necessary, for the sum of six thousand dollars, to be paid to him at the conclusion of the purchase of the above-mentioned site whether by private sale or by condemnation* * * * And the said' Robert Maclay and Alexander P. Ketéhum, on behalf of the said executive committe and said trustees of said college, agree that the said ‘six thousand ' dollars shall "be paid to the said Butler in-accordance with the terms herein set forth.” '
Butler testified that he procured the sale of all but four out of the 126 lots acquired, his work being completed about August 1, 1899. Upon the four lots subsequently acquired by condemnation
At the commencement of the trial the defendant moved for the dismissal of the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action ; and at the close of the trial upon the-ground that no facts had been proven sufficient to constitute a cause of action against the defendant; and duly excepted to the denial of its motion. The motion - should have been granted, and this judgment must be reversed. The plaintiff established no cause of action against the city. His contract, if such there were, was with “ a separate and distinct organization and body corporate,” to wit, the College of the City of New York. The obligation of the city was only “upon application of the said board of trustees ” to “ issue bonds * * * to an amount sufficient to pay the contract price * * * and for the expense incurred in the proceedings.” Until such application had been made to and refused by the comptroller, the city could not be put in default and no action would lie. The situation is precisely analogous to the relation that the city bears to the board of education. That board is by law created a corporate body. To that board the city is required by law to make appropriations for the pay of teachers and officers, supplies and maintenance. To that board is given the power to purchase or condemn land for school sites and erect buildings, and the title to all school property so acquired “ shall be vested in the mayor, aldermen and commonalty * ' * ' * but
■ There is this further consideration. The cost of this land and the payment of the expenses incident thereto were not to come out of the general current revenues of the city, but-were to be raised in a specific way, to wit, by the issue- and sale of bonds upon the application of the trustees- of the college; Where a -particular mode of discharging the obligations of municipal corporations is .provided by law, that mode must fee ‘pursued; and it is only when the corporation is put in default in omitting to discharge some duty imposed upon it- by statute after the proper steps have been taken,, that an action will lie. (Swift v. Mayor, etc., of City of New York, 83 N. Y. 535; Dannat v. Mayor, 66 id. 588.) Here, not only does it not appear that any application was made to the comptroller, by the trustees for the payment of this, claim, but it affirmatively appears that the
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.