
    Michael Bernstein and Mitchell Bernstein, Appellants, v. The City of New York, Respondent. (Action No. 5.)
    Second Department,
    October 12, 1909.
    Hew York city — contract with board of health — delegation of authority — pleading.
    Where in an action to recover architect’s fees the complaint alleged a contract with" the city of New York, acting through the board of health and the president of the board, and upon the trial, before any evidence was given, counsel for defendant stated that the contract was oral and made with the commissioner of health only, and moved to dismiss the complaint upon the ground that it failed to state a cause of action in that the only contract on which plaintiff could recover must be one made pursuant to a resolution of the board, it is error to grant the motion, since the plaintiff could have shown that the commissioner was authorized to make the contract by resolution, or that his act was subsequently ratified by the board.
    The board of health may authorize the commissioner of health to act .for it in making such contracts.
    Appeal by the plaintiffs, Michael Bernstein and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5tli day of February, 1909, upon the dismissal of the complaint by direction of the court upon a trial at the Kings County Trial Term.
    
      William L. Bowman, for the appellants.
    
      Theodore Connoly [Terence Farley and Francis K. Pendleton with him on the brief], for the respondent.
   Rich, J.:

The plaintiffs brought this action to recover the agreed value of their services as architects in making plans, specifications and drawings for the erection of a kitchen building at the Kingston Avenue Hospital, under a contract alleged to have been made by the defendant, acting through the department of health and the president of the board of health. Upon the trial, and before any evidence was given, counsel for the defendant stated that the contract upon which the action was based was not in writing, and was made by the plaintiffs with Commissioner Darlington; that the board of health was composed of three persons, the commissioner of health, the police, commissioner and the health officer of the port, and moved to dismiss the complaint upon the ground that the pleading failed to state facts sufficient to constitute a cause of action, in that the only contract that could be proved, which would be a basis for the recovery of architects’ fees, would be one made pursuant to a resolution of the board of health, which alone had power to contract therefor in connection with the erection of buildings. This motion was granted, and from the judgment accordingly entered the plaintiffs appeal.

It was error to grant the motion at that stage of the case. The complaint alleged a contract with the defendant, acting by its department of health and the president of the board of health of the health department. In support of this allegation it was competent to show that the commissioner of health, who was the president of said board, was authorized to make the contract in question by a resolution of the board of health, duly adopted, or that such contract, if made by the commissioner of health, acting on his own authority, was subsequently adopted, ratified and made a legal contract by such board. By section 1174 of the Greater New York charter the board of health is authorized to enact such by-laws, rules and regulations as it may deem advisable, in harmony with and not inconsistent with the other provisions of the charter, “ for the regulation of the action of said board, its officers and agents, in the discharge of its and their duties, and from time to time may alter, annul or amend the same.” This section vests in the board the power to authorize the commissioner of health to act for it in making such contracts, in which event a contract made by him, in conformity with the power delegated him, would be the contract of the board and binding upon the defendant, and it was not necessary that such contract should result from competitive bidding or be in writing. (Horgan & Slattery v. City of New York, No. 1, 114 App. Div. 555; Harlem Gas Co. v. Mayor, etc., of N. Y., 33 N. Y. 309.)

The judgment must be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Jenks, Gaynor and Burr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  