10 Misc. 664 | New York Court of Common Pleas | 1895
The plaintiff engaged to do certain work for defendant, the municipality of New York; and, upon an allegation that the defendant prevented the fulfillment of the contract, he sues to recover, under a claim of damages, the value of the work done and the profits he would have earned by performance of the residue. Jones v. Judd, 4 N. Y. 411, 414.
The decisive question in the case is whether, in fact, the defendant prevented the fulfillment of the contract. The referee finds, on sufficient evidence, that the plaintiff “was prevented from carrying out and performing said contract by the act of the commissioners of public parks and persons acting under their direction.” In an elaborate argument, counsel for the defendant contends—First, that the park commissioners are not the agents or servants of the defendant; and, secondly, that, though they be such agents and servants, yet the defendant is not responsible for their acts, because ultra vires. The park commissioners were appointed by the municipality for the care, improvement, and protection of its parks,—property held by the city in its corporate capacity, in distinction from property owned
The defense of ultra vires exists when the act complained of was wholly beyond the powers of the corporation; in other words, when it was not possible for the corporation, under any circumstances, to authorize the doing of the act. City of Chicago v. Turner, 80 Ill. 420; Mayor, etc., v. Cunliff, 2 N. Y. 165; Smith v. City of Rochester, 76 N. Y. 506; Cohen v. Mayor, etc., 113 N. Y. 532, 21 N. E. 700; Lemon v. Newton, 134 Mass. 476; Cavanagh v. City of Boston, 139 Mass. 426, 1 N. E. 834. But, “if the wrongful act in question is one which the municipality had the right to do under some circumstances or in some manner, then it is not ultra vires.” City of Pekin v. Newell, 26 Ill. 320. “If a municipality, acting by its common council or other governing body, determines to do an act, and commits the doing of it to some officer or agent, and the act was one which it had power to authorize, he and the municipality occupy substantially the relation of principal and agent; and hence it is answerable, at least, for such torts as he commits while acting in good faith, in exercise of the power confided to him.” Soulard v. City of St. Louis, 36 Mo. 546. “When officers of a town, acting as its agents, do a tortious act, with an honest view to some lawful benefit or advantage, reason and justice require that the town, in its corporate capacity, should be liable to make good the damage sustained by an individual in consequence of the acts thus done.” Hawks v. Charlemont, 107 Mass. 417; Pol. Torts (Am. Ed.) 59. Within the principle of these adjudications, the defendant is clearly
The evidence authorizes the inference, and so, in effect, the referee finds, that plaintiff’s employés were not arrested for violation of the city ordinance; and hence it may not be claimed that the prevention of work by the plaintiff was rightful. By a term in the contract, the defendant reserved the right to abrogate it for delay in the prosecution of the work. The work was to be completed by the 28th of April, 1891; and, being unfinished on the 14th of July, the defendant then, for the first time, gave notice of the exercise of its option to cancel the contract. But meanwhile the defendant recognized the contract as still subsisting, and waived its tardy performance. While the plaintiff, after his default, was continuing the work, with the consent of the defendant, and before defendant exercised its option to annul the contract, the plaintiff, on the 10th of June, renounced it, because of the prevention of its performance. True, the defendant had a right to abrogate the contract, notwithstanding the waiver of its timely performance; but the abrogation, when first attempted, came too late. The plaintiff had already exercised his right to repudiate the contract (Lawson v. Hogan, 93 N. Y. 39, 44), and there was then no contract subject to rescission by the defendant. Conceding that, notwithstanding the waiver of due performance, the defendant had the right to cancel the contract, such right could not survive the effectual abrogation of the contract by the plaintiff. Rescission of a contract already at an end is an absurdity. Not thus can the defendant escape the consequences of its wrongful interruption of the plaintiff in the fulfillment of his agreement. His prior cancellation of the contract fixed the rights and liabilities of the parties under it.
The defendant contests the finding of the referee as to the loss the plaintiff sustained by the prevention of the work; but, on a survey of the evidence, our conclusion is that we should not be warranted in reversing the decision of trial court. Baird v. Mayor, etc., 96 N. Y. 567. Profits on the work prevented are not allowed, but only the value of the rock to be excavated and removed; and of that value the proof is abundant.
The recovery for boring and blasting the defendant challenges, on the ground that the amendment of the complaint under which it was allowed was beyond the power of the referee to authorize. The amendment was made to conform the pleading to the proof, and, unless it substantially changed plaintiff’s claim, the referee had unquestionable jurisdiction to permit it. Code, § 723. Plaintiff’s claim being for damages from breach of contract, the amendment merely introduced into the complaint a new element or item of damage, consequent upon the wrong constituting the ground of action. The only limitation on the power of amendment at the trial is that no new cause of action or defense can be incorporated in the pleadings.
We are of the opinion that the appellant adduces nothing against the validity of the judgment. Judgment affirmed, with costs. All concur.
