
    John L. Moriarty, Appellant, v. The City of New York, Respondent.
    First Department,
    February 3, 1911.
    Military Code — emergency repairs to armory, city of New York — liability of city.
    As by section 1565 of the charter of the city of New York all powers relating to the construction, repairs and maintenance of public armories in said city devolve upon the armory board as in the Military Code provided, and as the powers formerly exercised by the commissioner of public buildings devolve upon the president of the board of aldermen as a member of the armory board, and as section 134 of the said Code allows emergency repairs not exceeding §1,000 to be done without calling for competition, etc., one who has in good faith completed emergency repairs in an armory of a value not exceeding that sum is entitled to recover therefor from the city of New York, if the order of the secretary of the armory board authorizing such work was ratified by the armory board including the president of the board of aldermen, and they have approved the bill, and there is an appropriation sufficient to pay therefor.
    Appeal by the plaintiff, John 1. Moriarty, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1909, reversing a judgment of the Municipal Court of the city of New York in favor of the plaintiff rendered on the 3d day of December, 1908, and directing a new trial of the'action.
    
      Charles Goldzier, for'the appellant.
    
      Loyal Leale, for the respondent.
   Dowling, J.:

This appeal is taken from an order of the Appellate Term reversing a judgment entered in the Municipal Court, borough of Manhattan, third district, in favor of the plaintiff in the sum of $311.16. The action was brought to recover the sum of $260.99 for emergency repairs to the Twenty-second Regiment armory and the armory of Squadron A, in the borough of Manhattan, city of New York,.between July 1,1905, and January 1, 1906. The repairs in question consisted, in the first named armory, in the doing of work upon a motor used in exhausting smoke from the rifle range; and at the latter, in part infixing torn wires, remedying defective-insulation, and furnishing materials required in connection with the same.

The performance of the work in question was proven by the armorers of Squadron A and of the Twenty-second Regiment as well as by the plaintiff; that the amount charged for the repairs and the various materials furnished was fair and proper was established as well.

When the armorers discovered the defective conditions in their respective armories which they deemed dangerous and requiring immediate attention, they forthwith reported the same to the secretary of the armory board, and he in each case gave the usual written order to plaintiff, directing him to do the work specified therein, being that for which recovery is sought herein. When the bills had been rendered by the plaintiff for the amount for which this action is brought, they were marked “ O. K.” by the armorer in each case, after which a certificate was appended to each bill by the ranking line officer commanding the respective organization, countersigned by the inspector of the armory board, to the effect that the materials and services enumerated in the bill had been properly delivered and rendered, that the bill was a reasonable and proper one and that it was thereby approved. It was further shown that each of the three bills in suit had been certified by George Moore Smith, brigadier-general, commanding the First Brigade ; by Frank A. O’Donnel, president of the department of taxes and assessments ; two of the bills had further been certified by O. V. Fornes, president of the board of aldermen, and the, other by Patrick F. McGowan,' then such president, in the following form : “ I hereby certify that I have examined the above account and believe it to be correct; that, the prices charged are just and reasonable, and such services as are therein specified have been properly performed ; and that the said articles have been or will be used for and applied to the service and for the-purposes of the city of New York, and that the payment of the amount of said account will not exceed the unexpended balance of the sum duly appropriated by law for the purpose thereof.”

It was further proven that Eugene A. Fornes,-the secretary of the armory hoard, through whom the orders in question were given, had been duly elected to that office on January 21, 1904, by the members of the armory board, and that such board held meetings once a month and that all emergency repairs were ordered through its secretary instead of by a meeting of the board called for that purpose. All emergency work was left solely to the secretary’s judgment, and when he had ordered it done he brought it to the attention of the board at its next succeeding meeting, whereupon the members of the board, having satisfied themselves that the bills were correct, approved them. This was confirmed by the testimony of Frank J. Bell, acting secretary of the board, who testified that through the years from 1900 to 1905 the secretary had power to order emergency work, such being the instructions given him by the members of the board, the only limitation being that the moneys must be on hand to pay for it.

When the resolution was passed creating the office of secretary an executive office Mayor Low, in the presence of a quorum of the members, stated that the secretary should have such power in respect to the emergency work, and it was never withdrawn.

In this case there is no question but that the services'were actually rendered, nor is their value disputed ; in fact, the defendant offered no proof of any kind and relied upon the lack of power to create any liability against the city under these conditions. The good faith of plaintiff in performing the services is not questioned, nor is there any proof that these, in fact, were not emergency repairs.

Under section 134 of the Military Code (Laws of 1898, chap. 212, as amd. by Laws of 1901, chap. 314, and Laws of 1904, chap. 321) it is provided as follows: “All repairs to * * * armories in the city of New York shall be done by said city, and all utensils, materials and supplies certified by the auditing board of an organization quartered therein to be necessary for the * * * preservation * * * of the armory * * shall be supplied by said city.” That section, after providing for a submission to the board of estimate and apportionment of an estimate regarding the necessary repairs for the year, and the expenditure of the sums so appropriated by and under the direction of the commissioner of public buildings, lighting and supplies, upon contracts made by bids, contains the following provision :

. “ 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 case of expenditures upon' an armory for whatsoever purpose made, upon like approval by. the ranking line officer commanding an organization quartered therein.” . ' . •

Thereafter, by chapter 466 of the Laws of 1901, section 1565 was added to the Greater New York charter (Laws of 1897, chap. 378), providing: “ 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 are hereby devolved upon the president of the board of aldermen, who shall be a member of said armory board.”

The powers' theretofore conferred upon the commissioner of public buildings, lighting and supplies thereby devolved upon the armory board, whereof the president of the board of.aldermen was a member. When, therefore, the armory board, including the president of the board of aldermen, in good faith ratified and accepted the act of its secretary in ordering the repairs in question as emergency work and approved the bills therefor, their action amounted to a determination that the work done actually was emergency work; and by that.determination, in the absence of bad faith, the city was bound, the aggregate of the bills being less than $1,000, and there being on hand a sufficient balance of the appropriation to meet the same.

For these reasons the determination of the Appellate Term should be reversed and the judgment of the Municipal Court -in favor of the plaintiff reinstated and affirmed, with costs to the appellant in this court and in the Appellate Term.

Ingraham, P. J., McLaughlin, Clarke and Miller, JJ., concurred.

Order reversed and judgment of Municipal Court affirmed, with costs.  