
    George Bork, App’lt, v. The City of Buffalo et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 28, 1891.)
    
    Municipal corporations—Assessments—Buffalo—Contract for wore BY PARK COMMISSIONERS—PREVIOUS CONFIRMATION BY COMMON COUNCII NOT NECESSARY.
    The section of the Buffalo charter which prohibits the city from entering into a contract for any work or improvement at a price exceeding $50( “ until the assessment therefor has been confirmed,” does not apply to tin board of park commissioners, so as to prevent them from contracting fo the paving of an approach within the park system without a previous con firmation of the assessment. This section applies exclusively to the regu lar municipal government, and to the contracts made by it through it common council.
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, affirming a judgment en tered upon the decision of the court at special term.
    Action to restrain the defendant, the city of Buffalo, from con firming, collecting or enforcing a local assessment for paving Fil more avenue, in said city, and to restrain all of the defendant from entering or continuing upon said avenue for the purpose c paving the same. .The parties stipulated, and the trial com found as facts that, during the year 1886 the plaintiff owned var ious parcels of land adjoining said avenue, which belongs to th park system of said city, and is under the sole jurisdiction an supervision of the board of park commissioners. On the 4th ( May, 1886, said commissioners by resolution declared their intei tion to order that said avenue be paved with asphalt pavement, i accordance with the plans and specifications on file in their offic and directed the proper officer to advertise for proposals to do tl work, and to cause notice of such intention to be duly publishet They also designated May 25th as the time for hearing all persoi interested in the work. Said notice was duly published, as r quired by law, but no person appeared at the time appointed : opposition to the proposed improvement. A proposition from tl defendant Barber to do the work for $173,355.94 was receive accepted and the contract awarded accordingly, and the preside: and secretary were authorized to enter into contract with him complete the pavement for that sum. May 29 a contract was e: ecu ted by the president only, in behalf of the park commissionei who on the same day notified the common council of the fact, ai that there was then in the general fund $86,667.97 to be applh in payment for said work, and that it would be necessary for th body to raise by local tax as much more, “ to be assessed, levi and collected upon the property adjacent to Fillmore avenue and benefited thereby, in accordance with ”■ the statute in such case made and provided. Thereupon, the common council determined by resolution, approved by the mayor, that the amount to be assessed for said improvement was the sum of $86,667.97, and directed the assessors to assess the same upon the adjacent property benefited. In the meantime the contractor had entered upon the aerformance of the contract. ■
    The assessors made the assessment and assessed the sum of 130.89 upon the lands of the plaintiff, but the assessment roll not been “ confirmed ” at the time when said contract was rded and signed. The court further found that “ all the pro-lings required by law to be had and taken in respect to said ssment were duly had and taken,” and dismissed the comnt upon the ground that said assessment roll did not require irmation by the common council before a contract for the k could be legally entered into, and that the assessment upon ntiff’s lands was in all respects regular and valid.
    
      Moses Shire, for app’lt; Frank C. Laughlin, for resp’ts.
    
      
       Affirming 18 N. Y. State Rep., 458
    
   Vann, J.

The plaintiff claims that the contract entered into ;he park commisioners for the paving of Fillmore avenue is ind, because the assessment therefor had not been previously irmed by the common council. This claim is based upon a ion of the charter of the city of Buffalo which prohibits that from entering into a contract for any work "or improvement, i certain immaterial exceptions, at a price exceeding $500, itil the assessment therefor has been confirmed.” Laws 1870, 3. 519, p. 1205, § 19, as amended by Laws 1885, chap. 181, p. § 20. The main question arising upon this appeal is whether section applies to the board of park commissioners and prefcs them from contracting without a previous confirmation of assessment.

he park commission was organized by chap. 165 of the Laws 869, entitled “ An act to authorize the selection and location ertain grounds for public parks in the city of Buffalo, and to ride for the maintenance and embellishment thereof.” This formed no part of the city charter and was in no way depend-thereupon. It created an independent department of the city srnment and clothed it with powqr to locate parks, to lay out roaches thereto, to appropriate and condemn. lands for these Doses, to make rules for the regulation, government and proron of the parks, and provided an elaborate system of procedto enable the commission to create, embellish and maintain :s with appropriate approaches for the benefit of the city,

he powers thus confided to the commission were to be exer1 independently, without the consent or approval of any other Y or officer. The year after the passage of this statute the charter was completely revised, but no part of the act of 1869 incorporated therein and the park commissioners were not in-ed among the officers of the city. Laws 1870, chap, 519. charter and the park commission act continued to be separate, although one or the other was amended almost every year,, until 1885, when the provisions of the latter were, in substance, added to one of the titles of the former. Laws 1885, chap. 181,¡ pp. 326, 330. The provisions added, however, were no more interdependent with the remaining provisions of the charter, than] the separate acts had been prior to the consolidation. The apparent object of such addition was to have all laws relating to the city government in its various departments embraced in a single statute for the sake of convenience. The park commissioners were not made city officers, but were still given “sole and exclusive power by contract or otherwise, to open, grade, construct, repair and maintain the roadways" and approaches tc the different parks, without leave or license from common counci or other agency of the city and even without the assent of the adjacent owners. They were required whenever any part of the work was assessable locally, to publish in the official paper notice of their intention to make the proposed improvement, for a spcci tied time, and after that to hear all interested persons upon the question of whether the work should be done or not. It is no probable that the legislature intended to provide for two hear ings upon the same question, one before the park commissioner and the other before the common council, or, by implication only to confer upon the latter body the power to determine that an in: provement ordered by the former should not be made. Thi would be inconsistent with “the sole and exclusive power” cor ferred upon the park commissioners with reference to the subjec of parks and their approaches. The object of § 19 title 9 of th charter was to provide for a hearing after confirmation of a assessment, so that the common council could then determim when all persons interested had been heard, whether to go on wit the work, or abandon the enterprise.

That section, as we think, applies exclusively' to the reguh municipal government and to the contracts made by it, throug its common council, because it would enable that body to decic intelligently, and before it was too late to recede, the question su' mitted to its exclusive jurisdiction whether a public improverner devised by it and for which it only was responsible, should 1 contracted for or not. We do not think that it applies to tl park commissioners or to the contracts made by them, becau the common council has no power to decide whether such co tracts are to be made or not, as the entire subject is express committed to an independent department of the city governmei The only duty of the common council in the matter is to raise 1 local assessment one-half the cost of such improvement as t park commissioners may determine upon, not exceeding, ho ever, the limitation of the statute as to amount. While § 19 sa that “ the city shall not enter into a contract" until the asse ment has been confirmed, the history and nature of the two a referred to show that the reference is to the city as governed the mayor and common council, and not to the park depa ment

The interpretation of a statute should accord with its meanii and a liberal rather than a literal construction should prevail when it leads to a discovery of the real intention of the legislature. Dwar. on Stat., 690; Plowd., 205.

The contract, as embraced in the written proposal and the resolution of acceptance, was between the defendant Barber and the park commissioners, not between the city and Barber. While the written agreement was in form between “ the city of Buffalo by the park commissioners,” it was notwithstanding the contract of the commissioners, as an independent department of the city, as appears from the reference therein to the proceedings of the board upon which it depended for validity. As the city was to pay for the work, and to have the sole benefit thereof, the contract was its contract in that sense, but not within the meaning of said § 19, which refers to contracts made by the regular officers of the municipal government, and not to those made by a separate department possessing independent corporate powers. The subject has been so fully considered by the learned general term as to require no further discussion on our part.

The judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., not sitting.  