
    Samuel Lewis, Respondent, v. The City of New York, Appellant.
    
      Armories in New Yoi'k city — emergency purchase of coal wilhoul advertisement for bids—the use of the coal does not make the city of New York liable — such supply of coal is not a “repair.”
    
    "Under the statutes governing armories, provided for the use of the State militia in the city of New York (Laws of 1898, chap. 212, § 134, as amd. hy Laws of 1901, chap. 314), and section 1565 of the revised Greater New York charter (Laws of 1901, chap, 466), the secretary of the armory board has no power, in ■ .an emergency, without advertising for bids and letting the contract to the lowest bidder, to order, for use in heating such armories, various lots of coal, none Of which exceed §1,000 in amount, but tlie total of which aggregate §2,606.76.
    The use of such coal in the armories will not entitle the vendor to recover the price thereof from the city of New York' as, in order to render the city liable upon such a claim, the provisions of the statute must be strictly complied with.
    The supply of coal to an armory for heating purposes is not a “repair” within the meaning of the statute authorizing the armory board to cause “repairs,” . immediately required to be done and which do not involve an expense exceeding §1,000, lo be made without calling for competitive bids.
    Appeal by the defendant, The Oity of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the loth day of October, 1904, 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 4th day of November, 1904, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      Theodore Connoly, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   Ingraham, J.:

Coal being needed for the various armories in the city of New York in the winter' of 1903, and the- armory board having made efforts to procure coal without success, in consequence of a strike that had existed, the plaintiff, at the request of the secretary, of the armory board, delivered to the board the following communication:

“ New York, December 18th, 1902.
“ The Armory Board of the City of New York,
“ Mr. John P. Gustaveson. Secretary:
Dear Sir.— In answer to your request. of December 15th, 1902, in regard to furnishing coal to the different Armories, I hereby propose and agree, subject to your acceptance to furnish pea coal, size No. 1, to such Armories as you may name for and at the price of Nine dollars ($9.00) per gross ton delivered alongside of any dock within the New York Harbor towing limits, and can guarantee delivery within three days from date of order.
“ In event of your acceptance will allow you five lay days to discharge the cargo of coal, and in event of detention longer than this period at dock, the captain will be entitled to a demurrage charge, $5.00 per day, after five days from reporting day; you to pay extra towing if the boat is to be shifted from its original consignment.
“ Yours very truly,
“ SAMUEL LEWIS.”

In answer to this communication Mr. Gustaveson, the secretary of the armory board, gave to the plaintiff various orders for coal which are substantially alike, one of which is as follows :

“ The Armory Board,
“ Secretary’s Office, 280 Broadway,
“ Telephone 2115 Franklin.
“ New York, Jany. 2nd, 1903.
“ Samuel Lewis, 126 Pearl St., Manhattan :
“ Please furnish between 30 and 35 Gross Tons No. 1 Pea Coal for Troop ‘ 0 ’ Armory, and deliver same at dock designated by Mr. Emerson, Coal Inspector,, as per your proposal of December 18th, 1902, for and on account of The Armory Board, and send bill in duplicate and this order, and the delivery receipt attached, to the office of the Secretary, 280 Broadway.
“ I certify to the necessity of the above work or supplies, and that the expenditure therefor has been duly authorized and appropriated.
• “(Signed) JOHN P. GUSTAVESON,
“ Secretary.”

In pursuance of this order the plaintiff furnished coal to various armories which was received and used to heat them between Decern- • her 31, 1902, and January 23, 1903, .costing, at the price named by plaintiff, $2,606.76. None of the various lots of coal thus furnished exceeded $1,000 in amount. Bills were presented to the city for the coal delivered to each armory, and attached to each bill was a certificate that the account had been examined and was believed to be correct; that the prices charged were just and reasonable and that the said articles had been or would be used for and applied’to the service, and that the payment of the amount of said account would not exceed the unexpended balance Of the sum duly appropriated by law for the purpose thereof by the members of the armory board.

The comptroller refused to pay these bills upon the ground that the coal was not furnished in pursuance of h contract made as, required by the Military Code, whereupon the plaintiff brought this action.

The armories of the city of New York are under the control of an armory board provided for by the Military Code (Laws of 1898,. chap. 212, § 134, as amd. by Laws of 1901, chap. 314). This board consisted of the mayor,- two senior ranking officers of or below the grade of brigadier-general, in command of troops of -the National Guard quartered in the city of New York, the president of the department of taxes and assessments, and the commissioner of public buildings, lighting and -supplies. By section 1565 of the charter (Laws of 1901,. chap. 466) the president of the board - of aldermen was substituted for the commissioner, of public- buildings, lighting and supplies and he was made a member of the armory board. Section 134 of the Military Code (as amd. supra) provides as follows.: “In the city of New-York the applications of commanding officers of regiments, battalions,- squadrons,- troops, batteries,. or signal corps, for suitable armories, and for -the furnishing .thereof when .first erected, . and for alterations and enlargements of armories, * * * shall be made to a board herein termed the armory board, and to consist of the mayor, the two senior ranking officers of or below the grade of brigadier-general, in command of troops of the national guard -quartered in said city, the president of the department of taxes and assessments, .and .the commissioner of public buildings, lighting and supplies. * * * T-lie commanding officer of each organization of the active militia quartered in the city of New York shall, before the first day of September ill each year, prepare and submit to the armory board an itemized estimate of the necessary expenditures to be made during the ensuing year for repairs to and furnishing of armories and utensils, materials and supplies to be furnished by said city. . On or before the twentieth day of September in each year the armory board shall revise said estimate and determine the amount necessary to be expended for the purposes aforesaid in the ensuing year. Such determination shall be made in detail, specifying as separate items the amounts .to be expended on each armory and for each organization for repairs, furnishing, utensils, supplies and other expenditures to be made by said city, and said board shall thereupon and before October first certify the amounts so fixed to the commissioner of public buildings, lighting and supplies of said city, who. shall include said amounts as determined' in detail by said board in and present the same to the board of estimate and apportionment as part of his departmental estimates for the ensuing year, and the said board of estimate and apportionment and the municipal assembly shall include said amounts as determined in detail, as aforesaid, in the final budget for the ensuing year. The amounts so appropriated shall be expended on the armories and for the organizations for which the same were respectively appropriated by and.under the direction of the commissioner of public buildings, lighting and supplies, who shall,.from time to time, as may be necessary, advertise in the City Record and the Corporation newspapers, for not less than ten days, for all utensils, supplies, worlc, labor and materials, asid shall award contracts for the same to the lowest bidders,, who shall give adequate security for the faithful performance of such contracts, except that, in case of an emergency, said commissioner may cause repairs immediately required to be done without calling for competition, at an expense not exceeding one thousand dollars in any one instance. No payment shall be made by the comptroller from the appropriation aforesaid, except as follows: In the case of supplies, upon the Written approval of the claim by the commanding officer of the organization receiving the supplies,, and in the case of expenditures upon an armory for whatsoever purpose-made, upon like approval by the ranking line officer commanding an organization quartered therein.”

By section 1565 of- the charter (Laws of 1901, chap. 466) it is provided as follows: “ All powers and duties relating to the construction, repairs and maintenance of and to public armories in The City of New York, and to the purchase of supplies therefor, so far as the same have heretofore been conferred upon the commissioner of public buildings, lighting and supplies by chapter two hundred and twelve of the laws of eighteen hundred and ninety-eight, known as ‘The Military Code’ are-hereby devolved upon the armory board having jurisdiction within The City of New York, as in said Military Code provided. The powers and duties heretofore -exercised by the commissioner of public buildings, lighting and supplies as a member of said armory board ¿re hereby devolved upon the president of the board of aldermen, who shall be a member of said armory board.”

Reading these two provisions together the amounts appropriated by the board of estimate and apportionment and the board of aldermen.were to be expended on the armories and for the organiza-, tions for which the same were respectively appropriated by and under the direction of the armory board, which was required from time to time, as should be necessary, to advertise for not less than ten days in the City Record and ■ the corporation newspapers “ for all Utensils, supplies, work, labor and materials and shall award contracts for the same to the lowest bidders, who, shall give adequate security for the faithful performance of such contracts, except that,in case of an emergency, said commissioner may cause repairs immediately required to be done without calling for competition,, at an expense not exceeding one thousand dollars in any one instance,” and the amount called for by the contracts made in pursuance of this authority conferred by the Legislature upon the armory board for the benefit of the National Guard of the State of New York were to be paid by the comptroller of the city .of New York out of the moneys appropriated for the particular armories as Inquired by the provisions of this act.

The expenditures here required are not strictly for. a municipal purpose, or for carrying on the municipal government. The fact that these armories were supplied with coal or other supplies would impose-no obligation upon the city of New York to pay for them, except where the statute expressly imposed such an obligation. There is no provision of law except that before cited which authorizes such an expenditure of the money of the city or imposed upon the city a liability to pay for supplies furnished to armories, and to thus impose a liability upon the city the provisions of section 134 of the Military Code (as amd. supra) must be strictly complied with. There is no proof that the armory hoard advertised for the coal furnished by the plaintiff, nor was there any contract made by the armory board, as a board, to supply this coal. , The plaintiff wrote a letter to the board offering to supply it, and the secretary of the board ordered the coal, but it is not claimed that the provision as to advertisements for bids or the making of a contract with the lowest bidder in pursuance of such advertisement was complied with. All through the section of the Military Code to which attention has been called the distinction is taken between repairs to the armories and supplies furnished to the armories. The armory board undoubtedly had power, in case of an accident which required immediate repair to an armory building, to make a contract for such repairs without calling, for competition, hut this power was given to the board only in case repairs were immediately required. Certainly the supply of coal for heating the armories so as to make them comfortable for tliose using them has no relation to repairs, whether immediately required or not, and the power of the armory board to expend any of the various amounts appropriated for utensils, supplies, work, labor and materials” without a contract, based upon a public letting is confined to repairs immediately required, and no expenditure is authorized by the city of New York and no obligation is imposed upon the city to pay for any supplies, except such as are furnished under a contract based upon an advertisement, and that contract must, by the provisions of the statute, be awarded to the lowest bidder.

It is settled in this court that no recovery can be had against the city of New York upon such a claim unless the provisions of the statute have been strictly complied with. (Walton v. Mayor, 26 App. Div. 76; Keane v. City of New York, 88 id. 542.)

It follows that the plaintiff was not entitled to recover for these supplies furnished to the armories for the benefit of the State.

The judgment and order appealed from must be reversed and a new trial -ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ.,' concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event, 
      
      The board of alderman has succeeded the municipal assembly. (See Revised Greater N. Y. Charter [Laws of .1901, chap. 466], §§ 17, 226.)— [Rep.
     