
    The Morning Telegraph Company, Plaintiff, v. The City of New York, Defendant.
    (Supreme Court, New York Trial Term,
    December, 1908.)
    Former adjudication — Who are concluded — State or municipality and officers or taxpayers — By writ of mandamus.
    Municipal corporations — Contracts — Contract made pursuant to writ of mandamus.
    Where the board of elections of the city of New York under the direction of a writ of mandamus designates a certain newspaper for the publication of election notices and the publishers of the newspaper while the designation is in force publish such notices they are entitled to pay therefor, although the decision of the court granting the writ is afterward reversed on appeal and the designation of the newspaper is revoked by the board which made it.
    Action to recover statutory fees for publishing election notices.
    Churchill & Marlow, for plaintiff.
    Francis K. Pendleton, Corporation Counsel (Richard H. Mitchell, of counsel), for defendant.
   Dayton, I.

On October y . 1906, the board of elections passed a resolution designating eight papers (four as advocating the principles of the ^Republican party and four those of the Democratic party) in which the election notices required by law should be published, at their proposed rates, on October seventh, eighth, ninth, twelfth, thirteenth, fourteenth and fifteenth and Hovember fifth and sixth. On October 6, 1906, a peremptory writ of mandamus was issued by the Supreme Court directing the board of elections to reconvene and designate four daily papers which “ advocate the election of William Randolph Hearst as the candidate for governor * * * and its platform as adopted at the State convention held on the 26th day of September * * * and the Democratic ticket as nominated at said convention.” On the 8th day of October, 1906, the board of elections again met and passed a resolution rescinding the resolution of October 4, 1906, and designating the plaintiff as one of the daily papers in which the said election notices should be printed. The board of elections having thereupon appealed to the Appellate Division, such proceedings were had that on November 5, 1906, the Appellate Division (115 App. Div. 218) entered an order reversing the order of the Special Term which granted the writ of mandamus and directing that a mandamus issue requiring the board to publish the notices in four newspapers “which advocate the principles of the Democratic party.” On November 13, 1906, the board of elections adopted a further resolution revoking the designation of the papers made under the resolution of October eighth and redesignating those papers named in its original resolution of October 4, 1906. On February 19, 1907, the Court of Appeals (187 N. Y. 327) affirmed the order of the Appellate Division above mentioned. The plaintiff, anticipating its designation by the board of elections, published the notices on October seventh and eighth before it received the official notice which alone could authorize the publication. For these two days it claims the sum of $4,242.74. I find that this claim is without foundation as not having been ordered, and I, therefore, dismiss the claim. The plaintiff claims the further sum of $14,849.59 for publication authorized by the resolution of October 8, 1906. The publication is conceded. The rates are not disputed. The plaintiff did the work and the city received the benefit. At the time of passing the resolution of October 8, 1906, there can be no doubt that the board of elections acted within the scope of its authority. It could have designated the four papers therein named as conforming to the tests recited in the writ of mandamus without the instruction of the court. The decision of the court at Special Term involved the construction of a statute ■—• nothing more. The learned Special Term, acting upon its best advisement, after due deliberation, decided that in its opinion the tests above mentioned were proper" and necessary, and so instructed the board of elections. That opinion fixed the law governing the acts of- the board of elections at the time of the resolution of October 8, 1906, by which this plaintiff was designated as one of the daily papers in which the election notices were to be published. And the law remained as so declared until the reversal of the order by the Appellate Division the day prior to the general election of 1906. Had there been no appeal the city certainly could not and would not attempt to question its liability upon this contract. But the entire work was performed before the order of the Appellate Division reversed the Special Term. As to subsequent publications, if there had been any, it may be admitted that the order of the Appellate Division would govern. But that order should not antedate itself to relieve the city of a contractual liability, properly assumed, it having receivejl the benefit of the full measure of performance of the work agreed upon at the contract price. Hence the action of the board of elections ¡November 13, 1906, by rescinding its resolution of October 8, 1906, and reafSrming its resolution of October 4, 1906, did not deprive the Morning Telegraph of the money it had earned by the performance of its duly made contract, notwithstanding the “payment (after the decision of the Court of Appeals, supra) by the city to the newspapers referred to in the statement of facts. On all the facts and circumstances presented what more valid agreement could the Morning Telegraph have had than one made by the sanction of the court requiring statutory performance at specified rates and within a limited period ? As that agreement was fully performed when the order for the mandamus was reversed I am of opinion that plaintiff is entitled to recover $14,849.59, with interest from ¡November 6, 1906, and costs. Verdict directed accordingly.

Judgment for plaintiff, with costs.  