
    James Kennedy, Respondent, v. The City of New York, as Successor to the City of Long Island City, Appellant.
    
      Verdict by direction of the court, where each party demands a verdict — contract between a city and an electric illuminating company — in an action to enforce such contract it is not a defense to the city that it has appropriated, the taxes levied for lighting purposes to the payment of a gas contract —failure of the illuminating company to supply light during the stipulated hours — what provision of the contract covers it.
    
    Where both parties to an action which is being tried before a jury move for the direction of a verdict, and the court directs a verdict in favor of the plaintiff, such verdict is, in effect, that of the jury.
    A city which makes a contract for the furnishing of electric light should not be allowed to escape payment for light furnished and accepted thereunder, on the plea that at the time the electric lighting contract was executed there was in existence a contract with a gas illuminating company for the furnishing of gaslight, and that the common council of the city had appropriated all of the taxes levied for lighting purposes to the payment of obligations incurred under the contract with the gas illuminating company, when it appears that such appropriation was not compulsory under the terms of the gas illuminating contract, but was an arbitrary act in utter disregard of the obligations flowing out of the electric illuminating contract.
    The fact that the electric lighting contract required the lights to be furnished from sunset to sunrise, and that the electric light company only furnished such lights after one-thirty A. m., is not a defense to an action brought by the electric light company against the city to recover moneys due under the contract, where it appears that such contract provided, “ In case for any reason any of such lamps are not lighted and lights are not furnished during any of the times herein provided or during the hours herein provided for, a rebate pro rata according to the time they are not so lighted shall be made from the amount here provided to be paid,” and that the city had never contended that such variations from the terms of the contract, concerning the hours during which electric light should be furnished, were not within the quoted provision of the contract.
    Appeal by the defendant, The City of New York, as successor to the city of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of December, 1903, upon the verdict of a jury rendered by direction of the court, and also ■ from an order entered in said clerk’s office on the 5th day of February, 1904, denying the defendant’s motion for a new trial made upoh the minutes.
    
      On December 31, 1891, a contract was entered into between the city of Long Island City and the Long Island City Electric Illuminating Company by which the said company agreed to provide, erect and maintain for the period of five years lamps to the number necessary to light with electricity certain streets and avenues in said city, which are named in said contract. The light furnished by each lamp was to be equal to 1,800 candle power by the ordinary test, the lamps to be lighted every night from sunset to sunrise. The contract also provided that in case for any reason any of such lamps were not lighted and lights were not furnished during any of the times provided or during the hours provided for, a rebate pro rata according to the time they were not so lighted should be made from the amount to be paid under the contract, and that in case the light furnished is not equal to the candle power provided for a rebate pro rata according to the deficiency in candle power should be made.
    The plaintiff, the assignee of the company, claims that under this contract the company furnished the necessary lamps and necessary appliances and lighted the same during the period covered by the contract.
    No money has been paid to the company or to the assignee under this contract, and for the amount claimed to be due thereunder this action is brought.
    
      James D. Bell [John J. Delany with him on the brief], for the appellant.
    
      Hector M. Hitchings, for the respondent.
   Jenks, J.:

Inasmuch as both plaintiff and defendant moved for the verdict, • the verdict directed is in effect that of the jury. (Adams v. Roscoe Lumber Co., 159 N. Y. 176; Smith v. Weston, Id. 194.) The plaintiff’s case is sufficient to establish that a contract for the electric lighting of certain streets in Long Island City, from January 1, 1892, to May 1, 1896, was duly authorized and executed, and that light was furnished thereunder, and not paid for. The defenses are that the contract was void and was not fulfilled. The ground of the first defense is that when the said contract was made there was in existence a contract with an illuminating gas company, and that the total appropriation for the lighting was legally applied to it.

But, first, it cannot be said that the defendant established that there was such a contract so as to render a verdict based upon a contrary conclusion erroneous. The defendant read in evidence a resolution that the mayor and city clerk be directed to enter into a contract with the gas company for five years, from January 1, 1885, and another and subsequent resolution that whereas, by the terms of that contract, it was agreed that the company should lay five miles of additional mains during the term of said contract and connect street lamps therewith, it should have the right and option to a renewal of said contract as therein provided, and whereas these things had been done, and the company had elected to renew, that the mayor and city clerk should execute and deliver a proper renewal. The term of the electric lighting contract must have been covered, if at all, by a renewal of the original five-year gas illuminating contract, made in 1885. But the renewal contract was not produced, nor was it proved that it ever existed. The custodian of the records of Long Island City, who produced all of the documentary evidence read by the defendant, testifies that there is no original contract of renewal on record in his office. The custodian of the records of the gas company testifies that his thorough search could not disclose a certified copy of a contract of the gas company with Long Island City in 1894. An attorney who had recently brought suit on behalf of the gas company for lighting testified that he had a certified copy of the original contract dated in, 1884, and that there was indorsed thereon an agreement of renewal, “of which the following is a copy, * * *; that original contract was offered in evidence before (a) referee,” and that that copy was then marked and used in evidence “ in place of the original before the referee, for a time,” but that he never saw the original on file in the city clerk’s office. The record before us reads: “ The copy was offered in evidence by the defendant and received (see appendix, p. 43).” But examination of appendix, page 43, does not show any such exhibit. On page 42 there is Exhibit 5, which runs over into page 43, but this is but the resolution which I have heretofore described that the Mayor and City Clerk be and they hereby are directed to execute and deliver the proper renewal of said contract according to the terms and conditions thereof.”

But assuming that such a contract existed, there is a defective premise in the defendant’s proposition. That proposition is: The appropriation for lighting the streets in 1892 was $42,300; the cost of lighting under the prior gas contract was $39,295, ergo the common council was powerless to execute the electric lighting contract involving payments in excess of the appropriation. Conceding that the sole source of payments upon such a contract was the appropriation, yet the defective premise is that the cost of lighting under the illuminating gas contract was $39,295, which, in order to justify the conclusion, should read that at the time of the execution of the electric lighting contract the existing illuminating gas contract absolutely and necessarily required the application of $39,295. I do not find evidence to justify such premise. We are apprised that the original illuminating gas contract was for lighting street lamps at a fixed sum per lamp. But it does not appear that any total sum was called for or required, or what number of lamps the company was entitled to light irrespective of the power of regulation or reduction vested in the city. The fact that six months after the execution of the electric lighting contract and the entry upon its performance, the common council, upon a recital of necessity, voted to apply the entire appropriation for the year to the gas illuminating contract, is no proof that it was required to do so by the terms of that contract. For aught that appeai-s, when the electric lighting contract was made there was an appropriation which was subsequently sought to be applied exclusively to the gas illuminating contract. If there was no appropriation applicable in whole or in part, and if the resolve was required by the law in view of existing obligations, then it was incumbent upon the defendant to show those things instead of interposing this belated resolve, which appears to be arbitrary and not required by law. I have discussed this phase of the question upon the defendant’s proposition that the sole source of payment was an appropriation, and that, therefore, the contract was invalid. In the face of a contract duly made, the city should not be allowed to escape payment for light furnished and accepted thereunder, on the plea that there was another existing contract under which the common council had appropriated all of the taxes laid for lighting purposes, when such appropriation was not compulsory by the terms of the gas illuminating contract, but appears to have been an arbitrary act in utter disregard of the obligations flowing out of the electric lighting contract. (Nelson v. Mayor, 63 N. Y. 535; Leonard v. Long Island City, 20 N. Y. Supp. 26; Kramrath v. City of Albany, 127 N. Y. 575, 581.)

It is contended that the contract was not fulfilled, because while in terms it required lights from sunset to sunrise, light was furnished only after one-thirty a. m. But the contract also provided: In case for any reason any of such lamps are not lighted and lights are not furnished during any of the times herein provided or during the hours herein provided for, a rebate pro rata according to the time they are not so lighted shall be made from the amount here provided to be paid, and in case the light furnished is not equal to the candle power herein provided, a rebate pro rata according to the deficiency in candle power shall also be made.” I think that this sufficiently contemplates the variation of the hours of furnishing the light. It does not appear that the defendant or its predecessor ever raised the contention heretofore that the variation was not within this provision of the contract, and it is now foreclosed thereby. (Baird v. Mayor, 96 N. Y. 567.)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  