94 N.Y.S. 710 | N.Y. App. Div. | 1905
Coal being needed for the various armories in the city of New York in the winter' of 1903, and the- armory board having made efforts to procure coal without success, in consequence of a strike that had existed, the plaintiff, at the request of the secretary, of the armory board, delivered to the board the following communication:
*455 “ New York, December 18th, 1902.
“ The Armory Board of the City of New York,
“ Mr. John P. Gustaveson. Secretary:
“ Dear Sir.— In answer to your request. of December 15th, 1902, in regard to furnishing coal to the different Armories, I hereby propose and agree, subject to your acceptance to furnish pea coal, size No. 1, to such Armories as you may name for and at the price of Nine dollars ($9.00) per gross ton delivered alongside of any dock within the New York Harbor towing limits, and can guarantee delivery within three days from date of order.
“ In event of your acceptance will allow you five lay days to discharge the cargo of coal, and in event of detention longer than this period at dock, the captain will be entitled to a demurrage charge, $5.00 per day, after five days from reporting day; you to pay extra towing if the boat is to be shifted from its original consignment.
“ Yours very truly,
“ SAMUEL LEWIS.”
In answer to this communication Mr. Gustaveson, the secretary of the armory board, gave to the plaintiff various orders for coal which are substantially alike, one of which is as follows :
“ The Armory Board,
“ Secretary’s Office, 280 Broadway,
“ Telephone 2115 Franklin.
“ New York, Jany. 2nd, 1903.
“ Samuel Lewis, 126 Pearl St., Manhattan :
“ Please furnish between 30 and 35 Gross Tons No. 1 Pea Coal for Troop ‘ 0 ’ Armory, and deliver same at dock designated by Mr. Emerson, Coal Inspector,, as per your proposal of December 18th, 1902, for and on account of The Armory Board, and send bill in duplicate and this order, and the delivery receipt attached, to the office of the Secretary, 280 Broadway.
“ I certify to the necessity of the above work or supplies, and that the expenditure therefor has been duly authorized and appropriated.
• “(Signed) JOHN P. GUSTAVESON,
“ Secretary.”
The comptroller refused to pay these bills upon the ground that the coal was not furnished in pursuance of h contract made as, required by the Military Code, whereupon the plaintiff brought this action.
The armories of the city of New York are under the control of an armory board provided for by the Military Code (Laws of 1898,. chap. 212, § 134, as amd. by Laws of 1901, chap. 314). This board consisted of the mayor,- two senior ranking officers of or below the grade of brigadier-general, in command of troops of -the National Guard quartered in the city of New York, the president of the department of taxes and assessments, and the commissioner of public buildings, lighting and -supplies. By section 1565 of the charter (Laws of 1901,. chap. 466) the president of the board - of aldermen was substituted for the commissioner, of public- buildings, lighting and supplies and he was made a member of the armory board. Section 134 of the Military Code (as amd. supra) provides as follows.: “In the city of New-York the applications of commanding officers of regiments, battalions,- squadrons,- troops, batteries,. or signal corps, for suitable armories, and for -the furnishing .thereof when .first erected, . and for alterations and enlargements of armories, * * * shall be made to a board herein termed the armory board, and to consist of the mayor, the two senior ranking officers of or below the grade of brigadier-general, in command of troops of the national guard -quartered in said city, the president of the department of taxes and assessments, .and .the commissioner of public buildings, lighting and
By section 1565 of- the charter (Laws of 1901, chap. 466) it is provided as follows: “ All powers and duties relating to the construction, repairs and maintenance of and to public armories in The City of New York, and to the purchase of supplies therefor, so far as the same have heretofore been conferred upon the commissioner of public buildings, lighting and supplies by chapter two hundred and twelve of the laws of eighteen hundred and ninety-eight, known as ‘The Military Code’ are-hereby devolved upon the armory board having jurisdiction within The City of New York, as in said Military Code provided. The powers and duties heretofore -exercised by the commissioner of public buildings, lighting and supplies as a member of said armory board ¿re hereby devolved upon the president of the board of aldermen, who shall be a member of said armory board.”
Reading these two provisions together the amounts appropriated by the board of estimate and apportionment and the board of aldermen.were to be expended on the armories and for the organiza-, tions for which the same were respectively appropriated by and under the direction of the armory board, which was required from time to time, as should be necessary, to advertise for not less than ten days in the City Record and ■ the corporation newspapers “ for all Utensils, supplies, work, labor and materials and shall award contracts for the same to the lowest bidders, who, shall give adequate security for the faithful performance of such contracts, except that,in case of an emergency, said commissioner may cause repairs immediately required to be done without calling for competition,, at an expense not exceeding one thousand dollars in any one instance,” and the amount called for by the contracts made in pursuance of this authority conferred by the Legislature upon the armory board for the benefit of the National Guard of the State of New York were to be paid by the comptroller of the city .of New York out of the moneys appropriated for the particular armories as Inquired by the provisions of this act.
The expenditures here required are not strictly for. a municipal
It is settled in this court that no recovery can be had against the city of New York upon such a claim unless the provisions of the statute have been strictly complied with. (Walton v. Mayor, 26 App. Div. 76; Keane v. City of New York, 88 id. 542.)
The judgment and order appealed from must be reversed and a new trial -ordered, with costs to the appellant to abide the event.
O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ.,' concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event,
The board of alderman has succeeded the municipal assembly. (See Revised Greater N. Y. Charter [Laws of .1901, chap. 466], §§ 17, 226.)— [Rep.