
    Marshall T. Davidson, Appellant, v. The Village of White Plains, Respondent.
    Second Department,
    July 23, 1907.
    . Municipal corporations — water works — special statute governing disbursement of moneys — creditor must proceed under statute;
    When a particular mode of discharging obligations of a municipal corporation is provided by law, that mode must be pursued.
    Thus, where the statute authorizing a village to construct water works ■ creates a board of commissioners with power to construct the system and provides that moneys' collected by the sal'e of bonds be deposited with the village treasurer to the credit of the commissioners not subject to disbursement by the board of trustees but to be paid out on bills audited by the commissioners on drafts drawn by the clerk upon the requisition of the commissioners signed by the village presidént, said statute becomes part of the contract for construction and the contractor can only enforce payment in the manner prescribed.
    Appeal by the plaintiff, Marshall T. Davidson, 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 17 th day of April, .1906, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Trial Term.
    
      Frank Verner Johnson, for the appellant.
    
      John M. Digney, for the respondent.
   Miller, J.:

The plaintiff’s complaint was dismissed at the opening of the case on the ground that it did not state facts sufficient to constitute a cause of action. The complaint attempts to set forth two causes of action, one on a contract for the sale and installation of' a compound pumping engine, and the other for extra labor and materials performed and' furnished in connection therewith. The complaint alleges the presentation of a-duly itemized and verified claim to the board of watfer commissioners of the defendant and to its board of trustees more than thirty days before the commencement of the action. .

Chapter 769 of the Laws of 1896 provides how the defendant might construct and operate a system, of water works. The act provides for the creation of a board of water commissioners with power to construct and operate such a system, and it specifies- the method of providing funds therefor, to wit, the issue and sale of bonds by the trustees from time to time, as required by"the certificate of said board of water commissioners, the deposit -of the proceeds of such sale with the treasurer of the defendant to the credit of said board of water commissioners and the payment .out of said fund of all accounts and bills audited by said commissioners upon drafts drawn by the clerk upon the requisition of said commissioners and signed by the village president. The act also provides that said funds shall not be subject to draft or disbursement by the'board of trustees for any purpose whatever. The learned trial justice dismissed the complaint.for the reason that in .the first instance the method of payment pointed out by the statute had to be followed and that an aqtion could not be maintained against the defendant-unless it was in default. The appellant contends, first, that it does not appear from the complaint that the matters involved had anything to do with the water supply, of the defendant. While the fact is not expressly alleged, that is the only permissible inference from the facts alleged, and hence I do not discuss the point. It may also be assumed without discussion or citation of authority, as claimed by the appellant, that the water commissioners were agents( of the defendant, and that the case of Holroyd v. Town of Indian Lake (180 N. Y. 318) has no application to the case at bar, for the reasons that in that case the water commissioners acted, not for the town, but for the exclusive benefit of a water district,.that they were not strictly agents of the town, that the town only lent-its credit to the water district, and had no liability whatever except such as the statute imposed upon it; nor is the case of Fleming v. Village of Suspension Bridge (92 N. Y. 368), relied on by the appellant, in point, for'the reason that the only question decided in that case was the’ authority of the board of water commissioners to bind- the defendant. I am unable to find anything in this case -to take it out of the rule declared in Dannat v. Mayor (66 N. Y. 585) and Swift v. Mayor (83 id. 528), that as said in the latter case, “ Where a particular mode of discharging the obligations of municipal corporations is provided by law. that' mode must be pursued.” (See, also, Hunt v. City of Utica, 18 N. Y. 442.) The remedies of a contractor are pointed out by Parker, Ch. J.,. speaking for the court, in Weston v. City of Syracuse (158 N. Y. 274), to wit:

1. Mandamus, in the case of mere neglect of the municipal authorities to proceed with reasonable diligence in the manner provided by statute. (People ex rel. Ready v. Mayor, 144 N. Y. 63.)
2. Action for breach of contract where the municipality either disables itself from performing or refuses to perform the contract. (Reilly v. City of Albany, 112 N. Y. 30. See, too, Baldwin v. City of Oswego, 1 Abb. Ct. App. Dec. 62; Beard v. City of Brooklyn, 31 Barb. 142.)

I am aware that in the case of Dannat v. Mayor (supra) the primary liability was upon a distinct corporation, i. e., the board of education, and' that in all of the other cases cited supra on this head, except Swift v. Mayor, the moneys weré to be paid primarily out of a fund obtained from a. particular assessment district, but in Swift v. Mayor (supra) the liability rested upon the entire city, was incurred for the benefit of the' city by a department having authority to bind the city, but was payable from a special fund and not by the finance department. In that case the fund was to be turned over to the treasurer of the department intrusted with said .payment; whereas in the case at bar it is to be placed by the treasurer of the defendant to the credit of the board of water commissioners, and the finance department, i. e., the board of trustees, has no authority over it. It does not seem to me that it can matter whether the particular board charged with the duty of paying the money has a treasurer of its own or whether the city or village treasurer also acts as treasurer for it. In the Swift case the money was obtained by a general tax, whereas in the case át bar it. is to be obtained by the sale of bonds. It is true that in that case the city was held to be liable upon another ground,- but it was necessary to decide this point before reaching that ground of liability, and the discussion of Judge Bapallo,' concurred in by the entire court, must be accorded the force of a decision and not of mere dictum. As I take it, the rule is- that when an obligation is to be paid, not by the finance department under the general system provided for the payment of the obligations of the corporation, but from a particular fund disbursed by some special department, particularly as in this case where it' is raised, not by general tax, but in a particular manner, i. e., the sale of- bonds, said special provisions are made a part of the contract whether incorporated therein of not, and the city contracts in the first instance only to. provide the fund in the manner pointed out by the statute, and can only be sued for a breach of that duty or contract. ■ ■

Ho such default or bleach of contract is pleaded in the case at bar as would bring the case within the exception-to the general rule that the method .provided by statute must be followed in the first instance, and as this case is even stronger for the defendant upon this point than was the case of Swift v. Mayor (supra), for the' reason pointed out, it does not seem to me profitable to prolong a discussion which is really closed, so far as this court is concerned, by the decisions of the Court of Appeals.

^ ■ The judgment should be affirmed.

Jenks, Hooker and Gaynob, JJ., concurred.

Judgment affirmed, with Costs.  