
    The People ex rel. Patrick Ready, App’lt, v. The Mayor, etc., of Syracuse et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 30, 1892.)
    
    1. Municipal corporations—Contracts—Interpretation—Action at LAW FORBIDDEN.
    The relator contracted with defendants to build a drain; by the terms of the contract no payment was to be made to him until the cost of the work should be ascertained and assessed upon and collected from the taxpayers liable to local taxation upon the same. Held, that under the provisions of such contract relator could not maintain an action at law for the recovery of the contract price.
    2. Same—Mandamus to enforce.
    Such contract contained the provision that “ the return of the city engineer shall be the account by which the amount of work done shall be computed;” that said engineer shall at once after completion and acceptance of the work send such account to the common council, and it, if satisfied, must approve the same. All this was done, an assessment roll for such improvement was left with the city treasurer and he received a small portion of the same, but took no steps to collect the rest nor paid over to relator the amount collected. On motion a peremptory writ of mandamus to enforce collection and payment was refused and a trial ordered, which was had before the court, a jury having been waived, and the writ refused. Held, that the writ was improperly denied.
    Appeal from a final order entered in Onondaga county clerk’s office on the 18th of April, 1892, denying the application of the relator for a peremptory writ of mandamus, with costs. August 8, 1890, an alternative writ was allowed at the special term and a! return was filed to 'the writ September 5, 1890. In behalf of the relator it was alleged that he was a contractor with the city for the construction of a 36 inch brick sewer in Spruce street from Washington to East Fayette street, and in East Fayette street from Spruce to Beech street; that he had completed the contract; that the city engineer had certified to such completion and to a final estimate therefor; that the common council upon the receipt of such certificate had adopted a resolution declaring its intention to issue local improvement bonds to pay for such improvement under the provisions of the city charter. That an assessment roll for such improvement was left with the city treasurer after the appointment of appraisers and the apportionment of the expenses upon the several lot owners ; that the treasurer had received and collected $1,371.19 on account of said improvement; that no furtlier proceedings have been taken by the defendants to collect the-balance, and that the relator had not received the $1,371.19, nor any part of it; that the relator asked to have the writ command the payment of the $1,371.19, the issuing of the bonds specified in the resolution and the application of the proceeds to the payment of the costs of the improvement, and that the collection of the taxes upon the said assessment roll remaining unpaid be enforced. There was a return to the writ which admitted the exe cution of the contract and averred that the relator undertook to perform the work and furnish the materials referred to in the contract, but that he had failed and neglected so to do; and had so performed the work and built the sewer as to make it practically useless and of no benefit whatever to any of the owners along the line of the improvement. The return also alleged that the certificate given by the city engineer was given under a mistaken idea of the facts and was erroneously and incorrectly made. It alleged that upon the receipt of said certificate the common council directed the cost of the improvement to be assessed upon the property along the line of the sewer and passed a resolution to that effect on the 31st of March, 1890. A peremptory writ was refused on motion and a trial ordered at the circuit in January, 1891; and a trial was had, a jury having been waived, before the court After hearing the evidence offered by the relator and the evidence offered by the defendants the court made and filed a decision denying the writ, with costs. From the judgment entered upon such decision this appeal is taken.
    The court found as conclusions- of law, as follows:
    “ 1. That any change or alteration made or consented to by relator of the said city engineer in the construction of said sewer, or in the depth or grade of the same, from that provided for. by said contract, plans, specifications and profile was illegal and unauthorized in law, and not binding on the city of Syracuse, or the common council of that city.
    “ 2. That the certificate or final account submitted by said city engineer on the 23d day of December, 1889, was not conclusive or binding on the city of Syracuse, and that said city of Syracuse, or the common council of said city, was not estopped by said certificate or account from denying the performance of said contract.
    “ 3. That the work as performed, and the sewer as constructed by said relator, was not a substantial compliance with the terms of said contract.
    “ 4. That the common council of said city was in no ways es-topped from rescinding the intent and directions expressed in the said resolution of March 31, 1890.
    “5. That the city of Syracuse cannot be compelled to issue bonds for the purpose of raising money to pay the balance of said assessment or any part thereof.
    “ 6. That the city of Syracuse cannot be compelled to issue a warrant for the collection of the balance of said assessment remaining unpaid or any part thereof.
    “ 7. That the city of Syracuse cannot be compelled to pay the relator any monies received by it from the property owners assessed for the construction of said sewer.” .
    Exceptions were duly taken to such findings of law. As matter of fact the court found: “ That on or about December 23, 1889, said city engineer made a certificate in writing to the common council of the city of Syracuse to the effect that said work had been performed and said sewer constructed in accordance with the terms of said contract.” He also found: “That said certificate of said engineer so given, was erroneous, incorrect, false and untrue.” Also: “ That as appears by said certificate and final account, of said engineer, the cost of the construction of said sewer amounts to the sum of five thousand two hundred and' forty-one dollars and twenty-five cents ($5,241.25).” Also found: u That upon the coming in of said certificate and final account, and relying upon the truth of the matters therein contained, and in the belief that said contract had been fully performed by the relator, the common council of the city of Syracuse passed the following resolution on the 31st day of March, 1890: ‘ Resolved. That this council hereby declares its intention to issue local improvement bonds to such portion of the cost of constructing a brick sewer in East Fayette street from Beech to Spruce streets, and in Spruce street from East Fayette street to East Washington street, as shall be proper under the provisions of § 142 of the city charter, as amended by the Laws of 1888; and the city treasurer is hereby authorized and directed to issue tax notices therefor in accordance with this resolution.’ That said common council in like reliance upon said account of said engineer, directed the cost of said sewer to be assessed upon the property benefited by the construction thereof, and the same was so assessed by the city assessors, and the assessment roll left with the city treasurer, and he has received the sum of one thousand three ■hundred and seventy-one dollars and nineteen cents ($1,371.19) ” from parties owning lands along the line of the sewer who were assessed therefor.
    
      M. M. Waters, for app’lt; Chas. E. Ide and C. G. Baldwin, for resp’ts.
   Hardin, P. J.

—According to the notice calling for bids and specifications and the contract between the parties payment for the work in question was not to be made until the samex shall have been completed and the cost assessed and collected from taxpayers owning property liable to taxation for the construction of said work.” In the contract between the parties it was agreed as follows: That no payment shall be made to the party of the first part under this contract until the cost of said work shall have been ascertained and assessed upon and collected from the taxpayers- liable to local taxation upon the same.” The contractor, under the provisions of his contract, therefore, was not in a situation to maintain an action at law for tire recovery of the contract price. Hunt v. The City of Utica, 18 N. Y., 442. The contract provided in terms that the work should be carried forward in the view and under the direction of the city engineer.' It expressly provided that “ all plans, explanations or directions necessary to the carrying out and completing satisfactorily the different descriptions of work contemplated and provided for under this contract will be given by the said engineer, and such plans and directions shall in all cases be complied with. And it is hereby mutually agreed between the parties hereto, that the return of the said engineer shall be the account by which the amount of work done and the materials furnished under this contract shall be computed.”

The contract contained also a further provision that “ when in the opinion of the said engineer the work shall have been fully completed in accordance with this agreement, the said engineer shall, as soon as practicable, make up the final account therefor, and upon his final acceptance of the work, shall return to the common council said account duly verified by him, whereupon said common council shall review, and when satisfactory, shall approve the same, and thereupon the moneys, or property deposited with his proposal for the work herein described, shall be returned to the party of the first part, and as soon thereafter as the cost of said work shall have been collected from the said taxpayers, the party of the first part shall be entitled to receive the amount due on said final account, retained in full settlement of this contract, less the amount hereinbefore specified.” By the evidence it appears that a final estimate and a statement of the items relating to the work were prepared by the engineer showing the city of Syracuse indebted to the relator in the sum of $5,241.24 for the work, labor and materials furnished in the statement and performed and delivered under the contract; subjoined to that statement was the following:

“ I certify the above amount to be correct, and that the work has been performed and completed 'according to contract and specifications.

“John B. Borden, City Engineer.

u Syracuse, Dec. 23d, 1889."

It is to be observed that the return contains no allegation of fraud or fraudulent practice on the part of the contractor or the engineer; nor is there any finding by the court of any fraud in obtaining the certificate of the engineer. During the trial Leonard Durston, who was an assistant engineer during the construction of the sewer, testified as follows: “I saw the work during its progress every time Mr. Borden was there; most every day ; I examined it as it proceeded, and knew the construction of it. We gave the contractor the grade of the sewer by driving a peg down into the soil every fifty feet. Sometimes the pegs were driven flush with the ground and sometimes a little above; * * * These pegs were driven under the supervision of Mr. Borden, the city engineer. We sometimes drove the pegs twenty-five- feet apart. The figures were marked on the peg and given to the inspector, with written instructions to the inspector. We gave the inspector'the figures in a book corresponding with the figures on the pegs. Those pegs and grade are made to control the contractor in laying the grade of the sewer. That was done in this case. The sewer was laid as deep as was required by the figures on the pegs. I know it was, because we went there every day ; I will say that it was within a quarter or an eighth of an inch; I would not say exactly. I know about the manholes; they were constructed according to the plans and specifications.” He also testified:

“ The sewer when it was finished had a regular continuous grade, and it was all right;” also, “I went there every time Borden went there; and pegs were set along there and the depth given to the contractor or inspector, and the figures marked on the top of the pegs. * * * Mr. Borden, the city engineer, brought the profile with him every time he went up there. I always noticed that he had the plan when he went along there. It was in his office and was for our use. Whenever we gave levels we took it with us. The plan was there at the time the stakes were set, every time. He had the plan there and compared that with the stakes when he went there; I know he did every time. ”

Steven Putnam, a witness called by the relator, testified that he was an inspector “ appointed to inspect this sewer by the city of Syracuse, and acted as such inspector during its entire construction. I directed the contractor in the construction of it, and gave him the grades. I gave Mr. Beady every grade from first to last. I gave him the grade as established by the pegs ■driven by Mr. Borden and according to the directions given to me by Mr. Borden. * * * It was built according to grade. ■* * * He built it just to the grade Borden gave him.” At no point was it built above the grade given to him by the witness. He also testified “ all the pegs were set by the engineer, and he made the marks upon the pegs.” “ The grade was given by Mr. Borden upon each one- of the pegs; the sewer was built, excavated according to the figures given on the pegs. * Whenever the contractor built the sewer above the grade as given to me by the engineer, I made him take it up and rebuild it on the grade. * * * Beady always put the grade of the sewer where I told him to put it. He followed my directions at all times.”

Jerry Beilly was called as a witness for the relator, and gave -evidence strongly tending to support the statements made by the inspector. The relator testified that the engineer “ drove those pegs; he marked the depth I should go; told me to go and build it according to them pegs. * * * As the work progressed he continued to give me pegs. I constructed and built the sewer on the grade given on the pegs in every instance.” “ I did it according to the measurements given by the engineer.”

Other evidence was given tending to show that the sewer was ■constructed in respect to its location and grade by the relator under the supervision of and in accordance with the direction of the city, through its inspector and its engineer. And evidence was given tending to show that the city had knowledge of the location and grade of the sewer before it accepted the same and took possession "of it and' appropriated it to its use, and before it. initiated the proceedings to assess the parties liable to pay for its construction. While on the other hand there was some evidence-given tending to show that the sewer was not in all respects in. accordance with the contract and specifications; that there were some defects and imperfections found therein by actual measurements taken in August, 1890.

When Dillon v. The City of Syracuse, 29 St. Rep., 912, was-before us, a similar contract was under consideration. In the course of the opinion in that case we had occasion to say “ The parties had a right to agree to be bound by the return of the engineer. Such a provision is obligatory. President etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y., 264, and cases cited. By the. fair construction of the contract in question, it must, I think, be held that the return of the engineer was conclusive on the contractors as to the material furnished or work done. * * * It. is quite apparent that nothing was to be left open for litigation under the contract, and that the return or final account of the-engineer was to include and represent and adjust all the claims oi the contractors. This was to be verified and presented to the common council. They were to' review and if satisfactory approve, and thereupon the contractors ‘shall be entitled to receive the amount due on said final account in full settlement of this-contract.’ ” Since our decision the court of appeals have decided Brady v. The Mayor, 44 St. Rep., 613; S. C., 30 N. E. Rep., 757, which approves of the principles contained in our decision in the Dillon case. In the Brady case the contract required the entire work to be completed “ to the satisfaction of the commissioner of public works and in substantial accordance with the specifications here annexed and the plan herein referred, to.” No fraud was charged, and it was held the contractor was entitled to recover the sum certified, with interest; and it was further held “Where the grades were given by the surveyor or his assistant, examination made after the excavation was completed and before filling in was done, the filling subsequently made to grade, and the work accepted, if the grade was mistakenly given to the contractor by the surveyor and the grade done in conformity therewith and certificates of completion afterwards given, the defendant cannot thereafter refuse to pay because as the result of a misdirection by its officers the specifications had not been literally complied with.”

In the course of the opinion delivered irj the Brady case it was-said “ The defendant distinctly provided in its contract that its-surveyor should be one • of the officers to represent its interest in the execution of the contract, and that his certificate that the work had been completed should be essential to the right of the contractor to demand compensation for his work. Not only does it appear that - the grades were furnished by the surveyor, or his: assistant, but it also appears that he subsequently certified to the completion of the work as provided by the contract.

“ That the contractor was at liberty to follow the directions of the officers whom the defendant had stipulated to represent it and speak for it in the execution of the contract is manifest not only from the provisions of the contract already referred to, but also from two others to which allusion may be briefly made. * * * So if the grade should be mistakenly given to the contractor by the surveyor and the work should be done in conformity therewith, and certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because as the result of a misdirection by its officers, the specifications had not been literally complied with.” See also Mulholland v. The Mayor, 113 N. Y., 631; 22 St. Rep., 347.

When the Brady case was before the general term of the superior court, 32 St. Rep., 102, it was said in the opinion delivered, “ The various officers of the city who had signed certificates testifying to the sufficient, completion of the work by the contractor, Brady, must be regarded as representing the city, and in the absence of any evidence of fraud their deliberate certificate must be regarded as binding on the city. Mulholland v. The Mayor, 113 N. Y., 632; 22 St. Rep., 347; People v. Stephens, 71 N. Y., 550. The acceptance of the work itself by the city without objection, and the application of the work when accepted to public use, are strong evidence that the contract has been practically and sufficiently carried out. Kingsley v. The City of Brooklyn, 78 N. Y., 200; Smith v. Alker, 102 id., 87.”

In the course of the opinion delivered by the trial judge reference is made to the case of Bond et al. v. Mayor of the City of Newark, 19 N. J. Eq., 376; that was a bill in equity to restrain the defendants from collecting an assessment, and after a statement by the chancellor of the facts in respect to the case, he intimated that there was a legal fraud in the case; however, in that case he did not set the assessment aside or deny the contractor any remedy ; on the contrary, he said, “ the only remedy is to make such deduction from the price as justice requires,” and he concluded his opinion by declaring that a reference should be had to a master to report what would have been the additional cost to O’Connor (the contractor) if, at the time the work was done, he had substantially not fully complied with every express requisition of his contract. * * *" We think that case is not an authority warranting entire disregard of the certificate and the acts of the city adopting the improvements. Peterson v. The Mayor, 17 N. Y., 453. It seems that some $1,500 of money has come,to the bands of the treasurer by the voluntary payment to him by some of the parties assessed for the improvement It is not apparent that the treasurer or the city can withhold the money thus paid for the purpose of satisfying the demands of the relator. The common council in effect approved of the return of the engineer and it has never rescinded that action. The People ex rel. Fielder v. Mead, 24 N. Y., 114; Ross v. Curtiss, 31 id., 606. In delivering the opinion in First National Bank v. Wheeler, 72 N. Y., 206, Andrews, J., said : “ But so far as the fund in the hands of the defendants is concerned, it has been raised through the machinery provided by the act; the commissioners reported to the supervisors; the supervisors levied the tax ; the collector collected it ^nd paid it to the defendants, and this has all been done with the purpose from the outset of paying the interest on the bonds. The town at this stage of the proceeding cannot intervene to arrest the-disposition of the fund and divert it from the purpose intended. The town does not own it, and has no right to its custody, and could not apply it to any town purpose if it had possession of it.”

The relator asks to have the defendants continue to discharge ■ their ministerial duties so that the relator may receive the moneys, due to him in virtue of his contract with the' city under the statute relating thereto.

The foregoing views, if adopted, lead to a new trial.

Judgment and order reversed and new trial ordered, with costs-to abide the event.

Martin and Merwin, JJ., concur.  