62 N.Y.S. 184 | N.Y. App. Div. | 1900
This action was brought to recover on a contract made between? the plaintiff and Long Island City (now merged into the city of Hew York), for repairing a bridge across Dutch Kills creek in said city. The complaint alleged the advertisement for jiroposals for said work,, .the execution of the contract by the city and its performance by the-plaintiff. The answer, after the admission of the incorporation of Long Island City and its subsequent merger into the present defendant, contained substantially a general denial of. the allegations of the complaint, and as an affirmative defense set up the provisions-of the charter of Long Island City (§ 16, chap. 1, tit. 3, chap. 461,. Laws of 1871), by which it was enacted that it should not be lawful for the common council to incur liability for the payment of any money, or .direct any work for the payment of which the city might-become liable, beyond the amount of cash applicable for the particular purpose then in the treasury of the city, and which provided, that all contracts made contrary to this direction should be void. It
We think the evidence as to the defect in the publication of the notice was properly excluded. The general rule is that where a contract is valid on its face, its illegality on account of extraneous facts must be specially pleaded. (Brennan v. The Mayor, 62 N. Y. 365; Milbank v. Jones, 127 id. 370.) The appellant concedes the correctness of this rule, but. contends that because the plaintiff alleged in his complaint, though unnecessarily, that proposals were duly advertised for] the general denial in the answer-put that allegation in issue and permitted the defendant to prove a. failure to advertise, to the same extent as if it had been set up as an affirmative defense. There is some strength in this claim, and to-a certain extent its fairness and propriety may be conceded. If, under these pleadings, the defendant had sought to prove that advertisements for proposals had not been made at all, it may be that evidence of such fact should have been allowed, or the defendant permitted to amend its pleadings. But the evidence offered was not of this character; it was simply to show that the request for proposals was not advertised a sufficient number of times, or at. •a sufficiently early date. These defects, we think, the defendant should have specially charged in its answer, in order that the plaintiff might not be taken by surprise on the trial. If the' rule of pleading should be relaxed at all in defendant’s favor, on account of the allegations in the complaint, that relaxation should not be carried so far as to permit it to show these irregularities in the advertisement without specially setting them up in the answer.
The claim of the appellant is that the liquor tax moneys had already been transferred to the sinking fund by the city treasurer. The authority for this is based on the section of the charter already cited, as amended by chapter 548 of the Laws of 1889. But if we are right in our views that the liquor tax money was subject to the control of the common council, the current receipts of such money for any one year could not be considered by law unappropriated until the end of that year.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.
This opinion was written by Mr. Justice Cullen before his designation as am associate judge of the Court of Appeals, and is adopted by this court. The= decision of the court was rendered after such designation was made.