
    Morris Moses, Appellant, v. The City of Key West, Respondent.
    (New York Superior Court — General Term,
    December, 1895.)
    Munich?ai, corporations—Improvement bonds—Purchaser has
    NO RIGHT TO CONTROL THE ORDER OR MANNER OP THE "WORK. ' ' ■
    A negotiator of an entire issue of improvement bonds of a municipal corporation has no right to control the order or manner in which .the . work is being prosecuted, and is not justified in refusing to accept the second series of bonds on the ground that the proceeds' of the first series were improperly applied',' as long as such proceeds were expended for work within the general scope of the improvement or for work preliminary thereto. ■
    Appeal from judgment of Trial Term dismissing complaint;
    
      W. F. Randel, for appellant.
    
      B. N. Harrison, for respondent.
   Per Curiam.

This action was brought to recover the sum •of $7,200, the amount of .commissions alleged to be due to plaintiff’s assignor under a certain agreement for the pur■chase of bonds that said assignor, one B. H. Oppenheim, had ■entered into with defendant. The appeal before us is by the plaintiff from a judgment entered at Trial Term dismissing the complaint. At the close of plaintiff’s case, in granting the motion of the defendant that' the complaint be dismissed, the learned trial judge delivered the following opinion:

“To recover in this action, the burden of proof is upon the plaintiff to establish such a breach of the contract on the part •of defendant as would entitle Hr. Oppenheim to. recover his whole commission on the whole issue of bonds to the amount •of $400,000. The defendant did not decide not to negotiate the balance of the bonds, and it did-not fail to cause them to "be prepared; but, on the contrary, the second series of $100,000 of bonds were prepared and tendered to Hr. Oppenlieim for negotiation, and were refused by him. Unless Hr. Oppenheim was justified under the contract in refusing them -and refusing to go any further, this constituted a breach of the contract on his part, and released the defendant from any further obligation under" the contract. The whole cáse, therefore,. turns upon the question whether Oppenheim was justified in his refusal. .It is1 claimed that he., was justified by'..reúsori of the alleged fact that the proceeds :of tlie first series of bonds had-not been expended strictly for the purposes, for -which the defendant was bound to expend them; but the evidence, in my judgment, does not' establish the claim. ■ Mr. Oppenheim, under, his contract, had no right to control the manner or the'order in which the work was- to be prosecuted. ■As long as the expenditures were incurred for work within the' ■general scope of the. act of 1889, or for work - preliminary to the inauguration of- the system, Or .any part thereof, contemr plated by the act of 1889,.it was sufficient.- If the application of the proceeds of the bonds can bé questioned" at all, as to w-hich there may be a strong doubt, the authorities, of the city of Key-West necessarily ought to have" a large discretion in directing all preliminary measures,-and in the manner arid the order of the prosecution of the ■ general plan authorized by the act of 1889, and Mr, Oppenheim could not- -control the exercise.of that -discretion. : The resolution referred to by the plaintiffs .counsel is not of' itself a breach of the contract. Under all' the facts, as they appear, the motion to dismiss must be granted. There - being no dispute as to the facts there can be nothing to submit to the jury.”'

A careful examination of the evidence does not disclose any dispute as to -the facts. Assuming all the testimony ' -offered ' by plaintiff to be true, and adopting the inferences most favorable- to. him, we are of the opinion that, he ha.d failed to-¡establish a cause of action.

We concur in the conclusion of fact reached by the learned trial judge and with the principles of law applied -to the case. 'Thé'record is free from error. ■ -The judgment is .right and ■should be affirmed, with, costs to the respondent.-

Present: Me Adam and Gildersleeve, JJ.

Judgment affirmed, with costs..  