34 How. Pr. 501 | The Superior Court of New York City | 1866
After the. arguments of counsel, Mr. Justice McCdnn said:
This is an action to recover $30,000 and upwards, for advertising done by plaintiff for defendants. The complaint is in the usual form for services rendered. The answer admits that there is justly due and owing the plaintiff the sum of $23,819.25, being, a part of plaintiff’s account, and sets up a general denial to the balance.
Application is now made, under section 244 of the Code, for an order directing the comptroller to pay over the amount admitted to be due by the answer. The corporation counsel, in his points, urges that, notwithstanding the admission contained in the answer, “that there is justly due and owing tó the plaintiff the sum of $23,815.25,” yet, under section 10 of what is commonly called the city tax law, or tax levy, passed May 4, 1866, wherein it says “no judgments in actions upon contract shall be entered, by default or otherwise, against the corporation, except upon proofs in open court that the amount sought to be recovered still remains unexpended in the treasury to the credit of the appropriation to the specific object or purpose upon the claim sued for as
How how stands the law? Section 7 of the charter declares that “all resolutions and reports of committees, which shall recommend any specific improvements involving the appropriation of public moneys, or the taxing or assessing the citizens of the city, shall be published in all the newspapers employed by the corporation, and shall not be passed or adopted until after such notice has been published at least two days.” Section 37 also declares that “it shall be the duty of the clerks of the respective boards to publish all ordinances which shall be passed, and also all other proceedings, in said newspapers, upon the passage of’ an ordinance which shall contemplate any specific improvement, or involve the sole disposition or appropriation of public property, or the expenditure of public moneys or income therefrom, or lay any tax or assessment, such ordinance shall, before the same shall be sent to the other board, be published with the ayes and noes, and with the names of those voting, in said newspapers, and that such publication shall be a part of the proceedings.” Section 38 declares that “ all contracts shall be entered into by the appropriate heads of departments, and shall be founded on sealed bids or proposals made in compli-.
In regard to the second point, I fully agree with the views entertained by the learned gentleman who represents the plaintiff in the action, in saying that the relief claimed should be granted. Section 10 of said tax law cannot affect the merits of this case, because the engagement was made and the work done before-the law of 1866 took effect. The instant the contract with the plaintiff was completed and the work performed, the constitution of the land places the rights under that contract forever beyond legislative control, and it was for that very purpose that the sagacious men who framed the federal constitution introduced the 10th section of article 1 in that instrument. To say that Mr. Wood has performed his work, has fulfilled his obligations in all respects,
It is, therefore, clear that all suspension by statute of remedies, or any part thereof, existing when the contract was made, is more or less impairing its obligation; and this clear rule of law was held in the case of Oreen agt. Biddle (8 Wheat. R. p. 1). In' that case, Chief Justice Taney, in delivering the opinion of the court, says that to deny any remedy under a contract, or by burdening the. remedy with new conditions and restrictions, and so make it useless, or hardly worth pursuing, is equally a violation of the 10th section of article 1 of the constitution. And Blackstone, in his Commentaries (vol. 1, p. 52), says that the remedial part of a law is a necessary consequence of the declaratory; for, says the learned commentator, “laws must be very vague and imperfect without a remedy.”
But, apart from all other considerations, and looking at the language of the act, there is nothing therein that makes it applicable' to ■ the case under consideration, and we ought with the highest respect conclude that our law makers did not intend it should have a retrospective or injurious effect; because, if the construction contended for be correct, then the legislature might just as well have said that claims similar to the plaintiff’s might all be blotted out. This was held to be the true doctrine, in the case of Danks agt. Quaekenboss (1 N. Y. R. 130; also 1 Den. R. 127), and in the case of The Beople agt. The Supervisors of Westchester County (4
How stands the present case? First, we have the amended charter of 1857, declaring that, to make the proceedings of the common council, legal and binding, they must be advertised for a certain specified time in the corporation newspapers. Second, we have the Daily Netos designated as one of such papers, with instructions that it should publish the proceedings of the different boards. Then we have the services performed in 1865 and 1866, and this action brought for the recovery of such services before the law of May 4, 1866/ was passed. Now, mark you, all this is admitted in the answer of the defendants; therefore, it is clear, from my reasoning, that section 10 of the tax law, passed May 4, 1866, and passed after the plaintiff’s rights had accrued and were vested, cannot act retrospectively so as to affect the plaintiff’s rights to recover in this case.
Let an order be entered compelling the comptroller to pay the amount admitted to be due, and a reference be ordered to Enoch L. Lowe, Esq., counsellor at law, No. 56 Wall street, New York city, to ascertain the justice of the balance of the claim.