106 Misc. 2d 945 | N.Y. Sup. Ct. | 1981
OPINION OF THE COURT
Plaintiff in his complaint seeks recovery for professional services rendered the defendant, which plaintiff claims were of the agreed price and reasonable value of $62,030.99. The defendant, in its answer, asserts a general denial of each and every allegation in the complaint. At the trial of this action plaintiff’s Exhibits 1 through 53, and defendant’s Exhibits 54 through 60 were admitted by stipulation. In addition thereto, the pertinent facts were also stipulated, to wit: by order dated September 18, 1967, the State of New York, Department of Health, directed that the defendant, Village of Middleville, “on and after May 1, 1968 cease and abate and thereafter keep abated all discharges by it or through its outfalls of sewage and other
(1) That the agreement is unenforceable because no appropriation had been made or funds authorized to be borrowed covering the expenditure. (Former Village Law, § 128-a [now Village Law, § 5-520].)
(2) That the agreement is unenforceable because the Commissioner of Health was not a party to the contract. (Public Health Law, § 1263-a [now ECL 17-1901].)
(3) That plaintiff’s payment was contingent upon, and to be paid only from grant moneys.
Defendant’s first defense is founded upon section 128-a of the former Village Law (now § 5-520, subd 2) which requires that: “No expenditure shall be made, nor shall any contract which in any manner involves the expenditure of money or the incurring of any pecuniary liability be entered into, unless an amount has been appropriated for the particular purpose and is available therefor or has been authorized to be borrowed pursuant to the local finance law.” Defendant contends that the agreement is unenforceable because no appropriation had been made or funds authorized to be borrowed covering the expenditure. The court does not accept this position. The defendant’s answer merely interposed a general denial. A defense under section 128-a of the former Village Law (now § 5-520) must be pleaded affirmatively. (Potts v Village of Haverstraw, 93
Defendant’s second defense is founded upon former section 1263-a (subd 4, par [b]) of the Public Health Law (now ECL 17-1901) which states that any municipality may “Select the person or firm to perform necessary consulting engineering services for a comprehensive study and report, and enter into contracts for such services, provided, however, that the commissioner shall also be a party to any such contract”. This section was under title IX of the Public Health Law entitled “State Aid; Collection, Treatment and Disposal of Sewage”. A reading of the legislative findings and policy indicates that this title was directed to financially aiding municipalities in pure water programs. By order of the Commissioner of Health dated September 18, 1967, the Village of Middleville was directed and mandated to submit to the New York State Department of
Defendant’s third defense is founded upon the assertion that plaintiff’s fees would be contingent upon Federal funding and, in support of this, refers to an oral understanding of the parties and to plaintiff’s letter of May 17, 1971 to the defendant wherein it was stated: “The engineering costs are in accordance with State-approved guidelines. For the wastewater treatment plant and intercepting sewers, all engineering costs are subject to the 60 percent with the Village paying only the remaining 40 percent. Federal grants on sewers would also apply to the engineering costs.” A review of this letter together with the contract entered into between the parties, and the evidence submitted indicated to the court that the language was merely intended to clarify the pro rata sharing of payment should a grant be received. The court finds no evidence in support of defendant’s contention that plaintiff’s compensation was on a contingency basis.
Judgment to the plaintiff for the amount demanded in the complaint, together with costs and disbursements of this action.
