Kelly v. Devlin

58 How. Pr. 487 | The Superior Court of New York City | 1879

Speir, J.

The point first presented in this case, assuming that the partnership, such as is alleged in the complaint, was in fact made or entered into, is: Was the original arrangement for a joint interest or copartnership illegal and contrary to positive law ?

The authority of the commissioner of public works to make and enter into contracts for the defendant, the mayor, aldermen and commonalty of the city of blew York, was conferred by chapter 335 of the Laws of 1873, commonly known as the city charter. By the seventy-first section, this department of public works shall have cognizance and control of paving, repairing and repaving streets, and keeping the same free from obstruction; by section 91, all contracts to be made or let for work to be done, or supplies to be furnished,' shall be made by the appropriate heads of this department, under such regulation as now exist, or shall be established by ordinance of the common council.

These ordinances provide, inter alia, that such person offering for the work should make out his estimate which he was to deposit in a box provided by the department for that purpose; the name and place of residence of the person mating the same; the names of all persons interested with him therein; and if no other person be interested it shall distinctly state the fact.

The ordinance further provides that the estimate should be verified by the oath, in writing, of the party mating the same, that the several matters stated therein were, in all respects, true.

As required by the ordinance, Charles P. Devlin, when estimating for the work of paving the streets, swore that he alone was interested in the bids or proposals, and that if he obtained the contracts for the work no individual other than himself would have an interest in such contracts. He was the lowest bidder for the work and, pursuant to the requirements of the statute and ordinance of the city, the contracts were awarded to him.

The complaint is framed upon the idea that the partnership was a secret one and concealed from the department of the city authorized only to make these contracts under the provisions of law.

The agreement between the plaintiff and Charles P. Devlin, deceased, positively asserted that the deceased was to obtain contracts in Ms name only to be executed and performed by him and the plaintiff, or one of them, upon such terms and conditions in respect to each contract as should be mutually agreed upon. The contract was illegal.

The first step in the plaintiff’s case was to prove that he was a secret partner and entitled to a share of this money. The obligation arises out of the contract of partnership itself. The ordinance prohibits secret partners, and the plaintiff, therefore, is not a partner. The object of the ordinance was to enable the department of public works to know with whom it contracted and, also, to see that certain officers of the city government should not become interested in procuring lucrative contracts for themselves and friends, and to prevent all secret combinations in relation to obtaining work. These contracts were to be given to the lowest bidder. The provision that every proposal for work shall contain the names of all persons who are interested, and prohibits any secret agreement or understanding that any person not named shall become interested in any contract that may be made, was intended to deprive the people of honest competition which public bidding is designed to secure.

Although, as a general proposition, the legislature of a state is alone competent to make laws, it is well settled that it is competent for the legislature to delegate to municipal corporations the power to make laws and ordinances, which, when authorized, have the force, as to persons bound thereby, of laws passed by the legislature itself. In the present case such authority was delegated by an act of the legislature to the defendant corporation, the mayor, aldermen and commonalty of the city of Hew York (Dillon on Municipal Corporations, sec. 245 and authorities cited; The Brick Church agt. The Mayor, &c., 5 Cow., 541; McDermot agt. The Board of Police, 5 Abbott, 422). The rule has been applied to a statute of similar import passed by the legislature of this state (laws of 1854, chapter 329) and has received the judicial sanction of the highest court. In the case of Woodmorth agt. Bennett (43 N. Y., 273), it was held that a secret partnership made by four persons that they were to be equally interested in the contract for the work obtained by one of the four partners, that such partnership was illegal, being against public policy.

- There is an admission in the complaint that one of the objects of invoking the aid of the court was “to have the partnership established,” and the accounts taken; and a concession on the part of the plaintiff that he and the deceased could not in his lifetime agree upon the accounts. I am unable to find any evidence of any agreement between the parties fixing the terms and conditions between them upon which any of the contracts or orders obtained by Charles P. Devlin were to be executed by them or by one or the other. It is true there was an accounting at Barry’s office in April, 1877, in which it appears to have been agreed that there was due to the plaintiff $2,500, and that Mr. Devlin would give that sum in settlement. But the accounts as produced, utterly-failed to show a partnership between the parties. The witness Barry did testify that there was an account stated and the amount agreed upon was $2,500, but he distinctly states that the accounts produced (which were for the pupose of proving a partnership) were wholly unintelligible to himself and the parties present incapable of explaining them further than agreeing that a sum was due to the plaintiff, and the deceased, Mr. Devlin, agreeing to pay the plaintiff the amount in settlement.

An account stated, the amount agreed upon, and a promise to pay, furnish good grounds for an action at law, but no basis for a bill in equity instituted for the purpose of establishing a partnership and for an accounting.

* The defendants are entitled to judgment.