26 A.D. 76 | N.Y. App. Div. | 1898
Lead Opinion
This action is brought to recover for goods sold and delivered. The complaint alleges “that between the eighth day of January, 1896, and the seventeenth day of April, 1896, the plaintiffs sold, furnished and delivered to the defendant, at its request, goods, wares and merchandise at the agreed upon price of four thousand two hundred and eighty-six dollars and fifty-six cents ($4,286.56), which was the reasonable value thereof.” There is no allegation that a necessity existed for the purchase or use of any of the materials, or that such a necessity was certified to by the head of the department who gave the order, or that the expenditure thereof was-authorized by the common council, or that a contract for the purchase of materials was entered into by the appropriate head of the department, made in compliance with public notice duly advertised. The plaintiff’s proof was that plaintiff furnished butter to the city on various dates between the 8th day of January, 1896, and the 17th day of April, 1896, aggregating $4,286.56, in lots ranging from $458.40 to $9.35. All of this butter was delivered at Ward’s island for the use of the public institutions, and the lots appear to have been delivered upon several different days during the period mentioned. The butter was delivered upon order addressed to the plaintiffs, and which read as follows (except that the amount and date differed):
*78 “Messrs. Hunter, "Walton & Co.,
' ' “No.764 Chambers Street: .
“Please.send;via East Twenty-sixth street pier, marked ‘City Asylum, Hart’s Island,’ and charge this department.
'“ 2,000 pounds of butter................................. 18c.
“ Ship Friday morning.
“Mark bills ‘City Asylum, Hart’s Island.’
“ GEORGE W. WANMAKER,
“ Purchasing Agent, D. P. O. (& (7.”
No other contract was made with the department of public charities, or" other representatives of the city, except by the delivery of ' an order in form substantially like'that above described, and the delivery of the goods mentioned in each order. Each particular item furnished by the plaintiffs was ordered separately. No contract to furnish this butter was made after public letting to the lowest ' bidder. The plaintiffs furnished the butter simply as they received the orders from Waninaker. The defendant’s counsel admitted that the .purchases were properly certified to by the commissioners of public charities to the finance- department, and thereupon the court directed a verdict in favor of the plaintiffs for the full amount claimed.
The defense was based upon section 64 of the Consolidation Act .(Laws of 1882, chap. 410), which provides that “ all contracts to be made or let for work to be done or .supplies to be furnished, except as in this act otherwise provided, * * ■* shall be made by the' appropriate heads of departments, under such regulations as now exist or shall be established by ordinances of the common council. Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the- corporation, and the several ■ parts of the said work or supply shall together involve the expenditure of more than one thousand- dollars, the same shall be by contract, * * * unless otherwise ordered by a vote of tliree-fonrths of the members elected to the common council; and all contracts shall be entered into by the appropriate heads of departments, and shall, except as herein otherwise provided, be founded on sealed bids or
There was no evidence offered by the plaintiff as to any particular necessity for furnishing these supplies at any'particular time ; nor did it appear that it was not known when the first order was given that the city would require for the use of the inmates of the public institutions the amount of butter ordered during the months of January, February, March and April, or that any necessity existed for such splitting -up in separate amounts the purchase of those supplies of butter for the institutions during the months mentioned. The action was based apparently upon the assumption that the municipal corporation (the defendant), like any private corporation, incurred indebtedness for supplies furnished by reason of an order-given for the supplies and an acceptance of the supplies so ordered. The rule, however, in relation to the liability of municipal corporations for contracts made by its agents, is somewhat different from that which relates to a private corporation with general authority to make contracts and employ agents whose acts are binding upon the corporation. As was said in the case of McDonald v. The Mayor (68 N. Y. 27): “ It is fundamental that those seeking to deal with a municipal corporation through its officials, must take great care to learn the nature and extent Of their power and authority; ” and ■the acts of public officials in making contracts with municipal corporations impose no liability upon the corporation, unless such acts come within the authority conferred upon them by law. If, therefore, this contraet, made by the pm-chasing agent of the department of charities, was not authorized by this section of the Consolidation Act before cited, the making of the contract by the commissioner of charities; or his subordinates, imposed no obligation upon the city of New York. _ The statute provides that whenever any supply is needful for any particular purpose, and is furnished for the corporation, and the several parts of the said order or supply shall together involve the expenditure of more than $1,000, “ the same shall be by contract; * * * and all contracts shall * *. * be founded on sealed bids or proposals, made in compliance with public notice duly advertised in the Gity Record.”
This provision is a limitation upon the powers of the officers of a municipal corporation to make contracts which shall impose a lia
It is conceded that this- butter was. not furnished under such a contract. It was ordered from day to day, and each' separate order was for less than $1,000, but it was all of material of the same character, and the several parts together involved the expenditure of more than $1,000. Counsel for the plaintiff claims that this supply was' not for a particular purpose, but it certainly was required by'the city to feed the inmates in the public' institutions. If the words “ for any particular purpose ” do ndt include supplies necessary, for the support of those whom the city' is bound to support, I cannot understand what these words mean. The section can have no other meaning than to provide that, when supplies are to be-purchased by a' department of the city government for the use of the city, or to fulfill a duty imposed upon the city by law, and when the aggregate amount of supplies needed for such purposes exceeds the sum of $1,000, they must be purchased as provided for by this section of the Consolidation Act. But if a department of the city government could order without public letting the supplies neces-. sary for the department for each day, because each order did not exceed $1,000, this provision would be nullified, as it is hardly probable that any department uses of any one particular material a greater amount in each day than could be purchased for the sum of . $1,000, and this provision would evidently be of no value if a department could order at its own will each day $999 worth of each par
Barrett and'Rtjmsey, JJ., concurred; Yan Brunt, P. J., and McLaughlin, J., dissented. .
Dissenting Opinion
I think this judgment should be affirmed. It is conceded that the butter for which a recovery was had was actually delivered to and used by the defendant, and was of the value claimed. • The only objection made by the defendant upon the trial to the plaintiff’s right to recover was, that the butter was not furnished in accordance with the provisions of section 64 of the Consolidation Act, as amended by chapter 327 of the Laws of 1893. • This statute was designed to insure economy on the part of the city, and to prevent favoritism, fraud and corruption by public officials. This was the purpose and only purpose of the statute. The butter was
• Under such circumstances it cannot be said that this butter was furnished “for any particular purpose” within the true intent and meaning of the statute referred .to. (Swift v. The Mayor, 83 N. Y. 529.) This statute was never designed to enable the city to do an act which, if done by an individual, would be dishonest.
The defendant has received and used the plaintiffs’ property; it has not paid for it; it concedes that it was of the value claimed, and it also appears that a necessity existed for its use. It is not even suggested that the butter was ordered, furnished or used with the intent on the part of any one to evade the statute.
The question involved upon this appeal is to be disposed of, it seems to us, in the same manner as though' each purchase of butter had been made from a different individual and without any knowledge upon the part of the various sellers that the purchases had been made of other parties; because the infirmity in the purchase depends upon the want of power in the department to make it, and the question as to the want of power is not affected by the fact that the separate purchases were made from the same individual, Each of these purchases was as distinct as though it had been made from a different party; each had no relation to the others; nor is there anything which connected them together as a continuous transaction. If these distinct purchases had been made from sepa^ rate sellers there would not seem to be any violation of- the statute, interpret it as broadly as you may.
We think the judgment is right and should be affirmed.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered,-costs to appellant to abide event. ■ '
