
    Frederick Clarke Withers and Fannie L. G. Dickson, as Executrix, etc., of Walter Dickson, Deceased, Respondents, v. The City of New York, Appellant.
    First Department,
    January 10, 1908.
    Municipal corporation — employment of architect" to construct prison, city of New York — effect of failure to approve plans,
    An architect employed under authority of chapter 626 of the Laws of 1896 by the commissioner of corrections of the city of New York to draw-plans and specifications "for a new city prison is not entitled to recover from the city for drawing detailed plans for the cell work, heating, lighting, ventilatin’g and plumbing and supervising the construction thereof, when the plans therefor Were not approved by the commissioner and board of estimate and apportionment, the work under said plans never authorized, and the plaintiff discharged from employment. .
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered- in the office of the cleric of the county of HeW York on the 18th 'day of December, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 24th day of December, 1906, denying the defendant’s motion for a new. trial made upon the minutes.
    
      Terence Farley [Theodore Connoly and Charles A. O’Neil with him on the brief], for the appellant.
    
      Albert Stickney, for the respondents.
   Laughlin, J.:

The action is brought to recover damages for a breach of contract. The plaintiff Withers and the decedent Dickson were architects. It is alleged in the complaint that they were duly employed to prepare detailed plans and specifications for the. construction of; the cell work, heating, lighting, ventilating and plumbing for the new city prison at Centre,. Franklin and Leonard streets, in accordance with general. plans which they had duly prepared on their employment by the commissioner of correction,-and which had been approved by the commissioner and by the board of estimate and apportionment. The verdict was directed upon the theory that the architects were entitled to recover five per cent of the cost of construction for preparing the detailed plans and specifications, and supervising the construction, less the disbursements they would have incurred, and that the cost of construction of this work would have been $2-80,000,.and that the expenses that would have been incurred by the architects in the performance of the contract, which were not incurred owing to their discharge, would have been $1,000. The defendant introduced no evidence. The plaintiffs recovered a former verdict upon the saíne theory upon evidence that does not materially differ from that in the -record now before us, and the judgment was reversed and a new trial granted by. this court. (Withers v. City of New York, 92 App. Div. 147.) It appeared in. the former record by uncontroverted evidence, as in this, that the general plans prepared by the architects were duly approved by the commissioner of correction and by the board of estimate and apportionment. It then appeared and now appears that neither the commissioner of correction nor the board of estimate ever approved the detailed' plans and specifications prepared by these architects for the cell work, heating, lighting, ventilating and plumbing for the prison, and that down to the time when the services of these architects were formally dispensed with, this work had not been authorized by the board of estimate and apportionment. On the former appeal this court decided -that under the special act (Laws of 1896, chap. 626) conferring legislative authority for this work, the commissioner of correction was authorized to employ architects to prepare plans and specifications for the work and to obligate the city to pay them reasonable compensation for their services in so doing, even though the plans should not bé approved or the work authorized by the board of estimate and apportionment, and that in the event that the plans should be approved and the work authorized by said board, the commissioner of correction was then and only in that event authorized to employ architects to supervise the construction of the work. We also held that the detailed plans and specifications for this particular part of the work never having been approved by the board of estimate and apportionment; and the work not having been authorized, the commissioner was without authority to employ architects to supervise the work and that his agreement to pay the architects five per cent for supervising the work, if made, was not- binding upon the city. The board of estimate and apportionment on approving the general plans,-authorized the construction of the building with the exception of the cell work, steam heating, ventilating, plumbing, elevator and sidewalks, and a contract for the work thus authorized was duly let, the performance of which was supervised by the- architects, who evidently received their compensation in full therefor. There is evidence tending to show that the commissioner of correction authorized these architects to prepare detailed plans and specifications for the cell and other work not. covered by the contract for the construction of the shell of the building.

It follows, therefore, that the. judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  