
    David Banks and A. Bleecker Banks, Respondents, v. Marcus T. Hun, Appellant.
    
      Supreme Court Reporter — his power to contract for the publication of the reports— the nature and reasonable term of such contract — chapter 474 of 1897.
    The Supreme Court Reporter has authority, under sections 349 and 350 of the Code of Civil Procedure, to enter into a contract with a publishing firm for the publication and sale to the public, at the price specified in the statute, of the decisions of the Supreme Court for a reasonable time—and five years, the term of office of such reporter, is a reasonable time for the continuance of such a contract.
    Such contract is not the contract of the State of New York, but the individual contract of the Supreme Court Reporter, and the Legislature is prohibited by the Constitution from increasing, during its continuance, the burden thereby imposed upon the party contracting with the reporter, by reducing the price at which said party is authorized to sell the volumes of the reports to the public.
    Appeal by the defendant, Marcus T. Hun, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 1st day of July, 1897, upon the decision of the court" rendered after a trial at the Albany Special Term overruling the defendant’s demurrer to the plaintiffs’ complaint.
    The action was. brought to compel the defendant, the Supreme Court Reporter, to continue to furnish to the plaintiffs the decisions of the Supreme Court as provided under a contract made between the plaintiffs and defendant for their publication by the former for five years from the 14th day of December, 1895, at the price of two dollars and fifty cents a volume — the defendant having declined to do so unless the plaintiffs would agree to sell the volumes of reports for two dollars a volume, as required by chapter 474 of the Laws of 1897.
    Other facts are stated in the dissenting opinion of Landon, J.
    
      Marcus T. Hun, appellant, in person.
    
      Simon W. Rosendale, for the respondents.
   Merwin, J.:

I concur in the .opinion of brother Landon, so far as he in substance holds that the contract in question was a valid one.

The amendment of 1897 did not affect vested rights. (People v. Supervisors, 67 N. Y. 109; Stat. Const. Law, § 31.) A contrae in pursuance of thé law as then existing, whether executed or executory, cannot.be annulled at the pleasure of the Legislature. (Potter’s Dwarris, 477; Fletcher v. Peck, 6 Cranch, 87; Von Hoffman v. City of Quincy, 4 Wall. 535, 549.) The ' rule is not changed by the circumstance that the public are interested to some extent in the performance of the contract. (The Delaware R. R. Tax; 18 Wall. 206, 225.)

There is no question about the right of the parties to make the contract in question except as to the time it should continue. That was an important element In the business transaction which the law contemplated. No; salary was attached to the office of reporter. The compensation for his services and expenses must .be obtained from the publication and sale, of the books. The success of the undertaking, for the benefit of himself as well as. of the public, required a contract if or a reasonable time. Upon the facts alleged in the complaint,, the conclusion is, I think, a fair one that the term of five years, being the term of the defendant’s appointment, was a reasonable time for the continuance of the contract, and must be deemed to be fairly within the contemplation of the statute as then existing. The contract, therefore, was authorized by law and within the protection of the constitutional provision against the impairment of the obligations of contracts.

There is no doubt that the act of 1897, if applicable to the contract, impairs its obligations.

We have not, I think, a right to assume that this contract was in effect between . the State and the plaintiffs, and that, therefore, the State had a right to. arrest performance and leave the plaintiffs to such remedy as they might have against the State for damages, under the doctrine laid down in Danolds v. The State (89 N. Y. 36) and Lord v. Thomas (64 id. 107). Those cases related to the construction of public'buildings, the property of the State. It was held that the State could stop the work, and leave the contractor to his remedy on the contract for. damages.

The contract in question was not in behalf of the State, and the books when, published did not belong to the "State and it was to pay nothing on account of them or to the reporter for his services. The undertaking of the defendant was .an individual one, and if he did not furnish to the plaintiffs the material he agreed to furnish, the State was not liable for such default. The defendant, by virtue of his appointment, had certain privileges in regard to a subject-matter in which the public had an interest, and, therefore, the defendant, in consideration of receiving his privileges, was charged with the duty of causing books to be kept on sale at a price not exceeding a certain sum.. The defendant, in order to make his privileges remunerative and discharge also the duty imposed upon him, made his contract with the plaintiffs. The contract was in no sense a public one and I fail to see any basis for plaintiffs claiming damages against the State.

The Legislature did not undertake to publish the reports. By the Constitution (Art. 6, § 21) it was bound to “regulate the reporting of the decisions of the courts,” and this.it assumed to do in the provisions of the Code on the subject. The fact of. regulation implies that some one else is charged with the duty of performance.

But it is said that the defendant is under obligation to carry out the law as. amended, and should, therefore, withhold performance from the plaintiffs.

If the contract for the five years’ term was valid and is not abrogated by the amendment of 1897, the defendant, by means of such contract, and as long as it is carried out by the plaintiffs, has provided in a legal manner for the discharge of the duty imposed upon him, and its burden cannot be increased after lie has, in pursuance of law, provided for its discharge. •

This is not a case of impossibility of performance, but a question •as to what statute should control the performance, or, rather, whether the statute in pursuance of which it was made shall Control.' In the Bronk Case (13 App. Div. 72) specific performance, was directed on the part of public officials, although the method of performance, if judged according to legislation subsequent to the contract, was contrary to law. ■

The plaintiffs, under the allegations of the complaint, are, I think, entitled to have their contract with defendant carried out, and, therefore, the judgment should be affirmed. ■ ■ ■

All concurred, except Landon, J., dissenting in opinion and Herrick, J., not sitting.

Landon, J. (dissenting):

The complaint ¡alleges in substance that the defendant, the Supreme Court Reporter of the State, acting as such within the ■ power, conferred and in pursuance of the duty enjoined upon him by sections 249 and! 250 of the Code of Civil Procedure, did, on the 24th day of December, 1895, enter into a contract with the plaintiffs whereby he agreed to furnish them with the manuscript for the Supreme Court Reports, Appellate Division of the State, and they agreed to print and publish the same, as required by section 249, in book form, and keep the same constantly for sale to persons within the State at the price of $2.50 for a bound volume of not less- than 100 pages, that being the maximum price then permitted by section 250 of the Code, the contract to continue for five years from that date; that both parties duly performed until after the amendment of section 250 of the Code, by chapter 414 of. the Laws of 1891, whereby the Supreme Court Reporter was required to cause ¡such bound volume's to be sold for $2 per volume, when the defendant notified the plaintiffs that' he should refuse further to perform said . contract on his part,, unless the plaintiffs would agree to place the bound volumes on sale at $2 per volume. This the plaintiffs, refused to do, but- ate ready to perform the contract, as it is. The complaint sets forth various facts showing that irreparable loss will result to the plaintiffs if the defendant should not perform,- and particularly that the parties to this contract, relying upon its performance, entered into another contract of the same date, to continue also for five years, with the reporters and publishers of the Court of Appeals Reports, and of the Miscellaneous Reports, for the publication of the “Combined Official Series of New York State Reports and Session Laws,” which contract the parties thereto have hitherto ' observed and performed, and are ready and willing to continue performing, but which cannot be done except at great loss to the plaintiffs, unless this contract shall also be performed; that the damages to result from non-performance by the. defendant of the contract with the plaintiffs are not capable of exact proof.

The plaintiffs pray that the defendant be enjoined from refusing performance, and be enjoined to continue it.

The defendant demurred to the complaint “ upon the ground that the complaint upon its face does not state facts sufficient to constitute a cause of action.”

The Supreme Court Reporter is a constitutional officer. (Const. art. 6, § 2.) Section 249 of the Code of Civil Procedure provides that he must report and publish such of the decisions at the terms of the Appellate Division or Special Terms of the court as he deems it for the public interest to have reported. * * * He must prepare for each volume and cause to be published therewith the usual digest, head notes, tables of contents and index.” Section 250 provided at the time this contract was made that “ The Supreme Court Reporter must cause the reports published as prescribed in the last section, to be kept constantly for sale to persons within the State, at a price not exceeding two dollars and fifty cents for a bound volume of not less than’ seven hundred pages.” By chapter 474, Laws, of 1897, section 250 was amended by reducing the price per bound volume to two dollars. The statute contemplates the personal work of the reporter in preparing the material for publication, and the choice of appropriate .means to secure the publication of the reports, and to cause them to be kept on sale at a price not exceeding that fixed by section 250. I have the less hesitation in holding’ that the contract here in question was made by the reporter in his official capacity as an officer of the .State, and within the scope of his powers, as a reasonable and proper means to the performance of the duty enjoined upon him, because our familiarity with the products of his labor thus performed, and in like manner performed for many years,, enables us to see that what the law would presume, the facts confirm. The contract is, therefore, one between the State and the plaintiffs. But it does not follow that the only course open to the State, acting through its officer and agent, the Supreme Court Reporter, is to continue its performance of the contract on its part for the full period of five years.'

If I hire A. to build me a house for $2,500, and A. commences the work, I may stop him at any stage of it, and his remedy against me is for damages. The same rule applies to the State in its capacity as a contractor. (Lord v. Thomas, 64 N. Y. 107; Danolds v. The State of N. Y., 89 id. 36.) I cannot, after the contract is made, require A. to build the house for $2,000. Unless I stop his building it, I must pay him the contract price for building it. So the State, which is here represented by the appellant, cannot require the plaintiffs 'to publish the Supreme Court Reports and place them, on sale for less than two dollars and fifty cents per volume, the contract price. Section 250 of the Code of Civil Procedure, as amended by chapter 474, Laws of 1897, now provides that “ the Supreme Court Reporter must cause the reports, published as prescribed in the last section, to be kept constantly for sale to persons within the State, at a price not exceeding two dollars for a bound volume.” He cannot cause it to be done under this contract; he may possibly cause it to be done under a contract with some other persons; but this would be a breach of his contract with the plaintiffs. The legislative mandate of the State, however, seems to be peremptory; it is no answer to say that the State has inconsistent contract relations with the plaintiffs; if it refuses to perform, it does not violate the obligation of the contract, since, by the payment of damages, it can fully satisfy that obligation, as was held in the cases cited. (McMaster v. State of N. Y., 108 N. Y. 542.) The appellant must, therefore, arrest the performance of this contract, unless the amendment of 1897 can and ought to be construed to apply to future contracts only. It will,- of course, apply to future contracts, but there is no reason for its exclusive application to them, except that of the existence of this contract arid the supposed desirability of preserving the present system of publishing the reports of the Appellate Division in connection with another contract referred to in the complaint, in some measure dependent upon this one, for the publication of the well-known and, we suppose, generally approved “• Combined Official Series.” In other words, the refusal by the State to perform this contract threatens to subvert the present system of publishing the reports. This we may regret, but we cannot deny the legislative power, and.we ' can see that the reduction of fifty cents in the price of the reports of the Appellate Division may have been regarded by the Legislature as a full countervailing ¡inducement. The reporter must obey the law as it is. This he proposes to do, and has so notified the plaintiffs, and hence they bring this action to prevent his non-performance, and to compel his pérformánce of it, they being ready and willing to perform upon their part. In this case, as in those cited, the plaintiffs must seek their remedy in damages. We are- cited to Bronk v. Barckley (13 App. Div. 72). There the State did not seek to arrest the performance of its own contract, but of the contract made between certain commissioners acting for the county of Albany, and a contractor for the labor of the prisoners in the Albany penitentiary. Both parties were desirous of carrying out the contract. The State was not a party to it. Its interposition was that of the sovereign, and not that of a contractor, and, hence, no question arose with respect to the State, except its constitutional right to impair the obligation of the contract of other parties.

We may assume .that the plaintiffs cannot make exact proof of their damages, but we must assume that they can make such proof as will permit them to be. ascertained with reasonable certainty. The State, however, having determined that the price per volume of the reports must be reduced, cannot be thwarted in its purpose, because the contractors, whom it must be presumed to be willing to indemnify against loss, will suffer inconvenience in establishing the amount of it.

The interlocutory judgment,' and the order upon which it was entered are and each is reversed, and an order allowing the demurrer granted.

Judgment affirmed with leave to defendant to answer over within twenty days.  