
    JOHN L. BROWN, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.
    
      Contract by commissioner of public wm'ks—when void under acts of 1857 and 1861 — certificate of commissioners under chap. 580, Laws of 1872—what it must contain.
    
    On the 27th of September, 1870, the commissioner of public works, in behalf of the city, entered into a contract with the plaintiff for regulating, grading and setting curb and gutter stones in Tenth avenue, from Manhattan to One Hundred and Fifty-fifth street, and flagging the sidewalk thereof, without complying with the provisions of section 38 of chapter 446 of the Laws of 1857, and chapter 308 of the Laws of 1861, requiring all contracts to be founded on sealed proposals, made in compliance with public notice; held, that the contract was void.
    Section 1 of chapter 383 of the Laws of 1870 contains the following clause : “ The commissioner of public works is hereby directed to immediately contract for the regulating and grading of the Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street;” held, that as the contract in suit provided for the setting of the curb and gutter stones and flagging the sidewalk, as well as for regulating and paving the avenue, it was unauthorized by the statute and void.
    
      Semble, that the statute merely authorized the commissioner to contract, without preliminary action of the common council or other local authority. It did not direct the manner of contracting, and the contract should, therefore, be made in compliance with the existing laws, and not arbitrarily, on such terms and with such persons as the commissioner might choose.
    The commissioners, appointed under chapter 580 of the Laws of 1870, indorsed upon the plaintiff’s contract, a certificate that they were “ satisfied that there has not been any fraud in relation to the making or entering into the said contract;” held, that this was not sufficient, the statute requiring them to certify that “ they are satisfied that no fraud has been perpetrated in relation thereto or in the performance thereof.”
    Appeal from a judgment entered on an order of the judge before whom the cause was tried, dismissing the complaint.
    
      John E. Develm, for the appellant.
    
      E. Delafidd Smith, corporation counsel, for the respondent.
   Davis, P. J.:

.This action was tried before Mr. Justice Van Bbunt, at circuit. At the close of the plaintiff’s case, the complaint was, on motion of defendant’s counsel, dismissed with costs. The action was brought upon a contract, made by the commissioners of public works on behalf of the city, with the plaintiff, on the 27th of September, 1870, “ for regulating, grading and setting curb and gutter stones in Tenth avenue, from Manhattan to One Hundred and Fifty-fifth street, and flagging the sidewalk thereof.” The questions raised upon the motion to dismiss the complaint were substantially : First, that the commissioners of public works had no authority under the law to enter into the contract. Second, that the contract was not founded upon sealed proposals, in compliance with the provisions of section 38 of the charter of 1857, and section 1 of the act of April 17 th, 1861, entitled “An act relative to contracts by the mayor, aldermen and commonalty of the city of New York.” Third, that the certificate of the contract commissioners, appointed under the provisions of chapter 580 of the Laws of 1872, was not in accordance with the requirements of the act, and did not validate' the contract or relieve it from the objections as to the authority of the officers who made it.

On these grounds the learned justice granted the motion. Section 38 of the charter of 1857, and the act of April 17th, 1861, require that all contracts shall be made by the appropriate heads of department, and shall be founded on sealed proposals, made in compliance with public notice, advertised in such newspapers of the city as may be employed for that purpose; that such notice shall be published ten days, and that all contracts shall be given to the lowest bidder, who shall give security. It was substantially conceded at the trial, that the contract in suit had been made by the commissioner of public works with plaintiff, without compliance with any of the requirements of the above provisions. It has been repeatedly held that a contract so made is void.

It is, however, insisted by plaintiff that the power to make this contract, without compliance with the formalities required by the existing laws, had been expressly conferred by the legislature upon the commissioners of public works.

In section 1, of the act of April 26th, 1870, entitled £‘ An act to make further provisions for the government of the city of New York,” a clause appears in the words following: “The commissioner of public works is hereby directed to immediately contract for the regulating and grading of the Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street.” This act, it will be observed, became a law on the 26th of April, 1870. The contract with plaintiff was not made till the 27th of September, 1870. No construction, founded upon the idea of immediate necessity, rendering it impracticable or inconvenient to comply with the forms of existing laws, need be given.

It is not easy to see that this provision goes any farther than to clothe the commissioner with power to contract, without preliminary action of the common council or any other local authority, to determine the necessity or expediency of the work. It is a direction to proceed immediately to contract, but how? It does not assume to direct the manner of contracting, nor indicate the person with whom the contract shall be made, and hence the reasonable construction is, that the contract was intended to be made in compliance with the existing laws, and not arbitrarily, on such terms and with such person as the commissioner might choose.

But, however this may be, it is clear that the contract was not made in conformity with the authority given by the provision of the act of 1870, above quoted.

That provision only gave authority to contract for the regulating and grading of the street. The power assumed under it, was not only to contract for the regulating and grading, but also for setting the curb and gutter stones, and flagging the sidewalk, an addition which the bills in the case show, added many thousand dollars to the price to be paid. The authority conferred was not pursued; hence, the contract must be deemed to be subject to the general law, and, within the authorities, is invalid, unless cured by the certificate of the contract commissioners.

The plaintiff proved and read in evidence, a certificate of the commissioners, appointed under chapter 580, of the Laws of 1872, indorsed on said contract. The first section of that chapter declares that no contract or agreement made or entered into within five years last past, by any department or officer,” of the kind mentioned therein, “ shall be held regular, sufficient or valid,” when any of the several defects, specified in the act, exist, “ unless the commissioners hereinafter appointed, or a majority of them, shall certify, in writing, upon the contract or agreement, that they are satisfied that no fraud has been perpetrated in relation thereto, or in the performance thereof, but such contracts and agreements are hereby ratified and confirmed and declared to be valid and binding in each and every case in which such commissioners, or a majority of them, shall certify as hereinbefore provided.” The omissions and defects in the manner of making the contract in this case, and the want of authority of the officer to make the same, are of the kind which the statute declares may be cured by the prescribed certificate, but which it also declares shall be fatal, unless the certificate be obtained. The certificate of the commissioners was made on the 5th day of August, 1872. It appears that, at that time, the work under the contract was about four-fifths done. The certificate certified that the commissioners “ are satisfied that there has not been a/ny frcmd in relation to the making or entering into the contract.” The statute requires that the commissioners certify on the contract “ that they are satisfied that no frcmd has been perpetrated in relation thereto or in the performance thereofP

The certificate given, fails to comply with the statute in two particulars.

First. It does not certify that the commissioners are satisfied that no fraud 7ms been perpetrated in relation to the contract, but limits their consideration of the question of fraud, to “ the making or entering into the contractP

It is not difficult to conceive that fraud may have been perpetrated “ in relation to the contract,” which may properly be said not to be “ fraud in relation to the making or entering into the contract.” The one certificate is broader and more comprehensive than the other, and it is the broader one which the statute requires.

Second. The certificate does not certify that the commissioners are satisfied that no fraud has been perpetrated in the performance of the conti'act. It is urged that this requirement relates only to contracts that have been wholly performed, while this contract had been but about four-fifths performed. This distinction .does not seem to be sound. Whatever had been done under the contract,was clearly done “ in performance ” of it; and to hold that, because the contract had not been fully completed, therefore the question, whether fraud had been perpetrated in doing four-fifths of the work under it, was not to be investigated by the commissioners, is to give a narrow and very stringent operation to the act. On the contrary, the purpose was to require an investigation which should determine, before an invalid contract should become valid by force of the statute, that there had been no fraud in relation thereto, and none in the performance of it, whether complete or incomplete. The learned justice was, therefore, correct in ruling that the contract was not obligatory upon the defendants.

But it is insisted that the act of the legislature, passed 20th January, 1871, has ratified and made valid the contract in question. That act authorizes and directs the board of assessors, to assess upon the property benefited, in the manner provided by law, the expense which has been or shall be actually incurred by the mayor, etc., in regulating, grading and setting curb and gutter stones, and flagging sidewalks in Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street.. It might, perhaps, be answered to this position, that since the contract made by the commissioner of public works, was and is void, no expense under it has been incurred by the city; but a better answer is found in the fact that no reference is made to any contract, and no intent is manifest in the laws, to deprive the city of any defense existing against any contract. The provision is equally applicable to any expense that may have been incurred for the purpose named, independently of plaintiff’s contract. Besides, it appears that a very considerable amount has. been paid by the officers of the corporation for work doné by plaintiff, and it may well be said that the intention was to enable an assessment and collection of such moneys without affecting, in any wise, the validity of the contract itself. It often occurs that the legislature authorizes assessments to indemnify towns and counties for moneys expended or incurred; but it has probably not been held, that by so doing, it conclusively establishes a liability, on the part of the town or county, which before had no legal existence, by making valid an unlawful contract.

The judgment appealed from should be affirmed.

Daniels and Donohue, JJ., concurred.

Judgment affirmed. 
      
       Chap. 308, p. 702.
     
      
       Brady v. The Mayor, etc., 2 Bos., 173, affirmed by Court of Appeals, 20 N. Y., 312; McSpedon v. Stout, 4 Abb., 22; McSpedon v. The Mayor, 7 Bos., 601; Peterson v. The Mayor, 17 N. Y., 449 ; Bliss v. Matteson, 52 Barb., 335.
     
      
       Chapter 383, Session Laws of 1870, p. 884.
     
      
       Chap. 5, Laws of 1871, p. 4.
      
     