
    John B. Greene, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondents.
    (Argued January 29, 1875;
    decided March 30, 1875.)
    The provision of the amended charter of the city of New York of 1870 (§ 104, chap. 137, Laws of 1870), requiring contracts “made or let by authority of the common council ” to be upon ten days’ advertisement and sealed proposals, and to be let to the lowest bidder, and requiring work involving an expenditure exceeding $1,000 to be done by contract, applies only to work done and contracts made or let by authority of the common council. (Miller, Folger and Grover, JJ., dissenting.)
    The act of 1871 to extend the distribution of Croton water, etc. (chap. 013, Laws of 1871), authorizing the corporation, by the commissioner of public works, to expend in making the specified improvements a sum not exceeding $1,500,000, vested the commissioner, as agent for the corporation, with the exclusive control and direction of the work, with implied authority to enter into the necessary contracts therefor. The common council had no authority or jurisdiction over the subject. (Miller, Folger and Grover, JJ., dissenting.)
    Accordingly held (Miller, Folger and Grover, JJ., dissenting), that contracts made by the commissioner of public works in prosecution of the improvements authorized by said act, were not invalid because of the failure to advertise for proposals as required by the charter, and that the corporation was liable thereon.
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendants entered upon an order dismissing plaintiffs complaint at Circuit. (Reported below, 1 Hun, 29.)
    This action was brought to recover the amount alleged to be due plaintiff upon two contracts executed by him and the defendant, by the commissioner of public works.
    The contracts were executed July 1st, 1872, for work in carrying out the improvements authorized by the act providing for the extension of the distribution of the Croton water, etc. (Chap. 213, Laws of 1871.) The performance of the work, in compliance with the contract, the audit of the claim, the making of the necessary requisition upon the comptroller of the city, and that sufficient money raised under the act to pay the claim was in the city treasury, was admitted. Defendants’ counsel moved to dismiss the complaint on the ground that no advertisements for proposals were published before making the contracts, as required by section 104 of the amended charter of 1870 (chap. 137, Laws of 1870), which motion was granted and plaintiff’s counsel duly excepted.
    
      
      Greene v. Mayor, etc. (1 Hun, 29) reversed.
    
      Further facts appear in the opinion.
    
      John H. Strahan for the appellant.
    The contracts were validly entered into on the part of defendant. (Laws 1871, chap. 213; Laws 1870, chap. 137, §§ 21, 77; Laws 1873, chap. 335, 855 ; Laws 1849, chap. 383; Laws 1863, chap. 95 ; Laws 1864, chap. 267; Laws 1865, chaps. 285, 581; Laws 1867, chap. 251; Laws 1869, chap. 784; Laws 1870, chaps. 230, 383, § 6; Laws 1872, chaps. 593, 872.) It was error to hold that the provisions of section 104 of the charter of 1870 apply to and extend to chapter 213, Laws of 1871. (Laws 1857, chap. 446, § 33 ; Laws 1870, chap. 137, §§ 21, 22, 77, 79; People ex rel. Navars v. Van Nort, 64 Barb., 208 ; Peterson v. Mayor, etc., 17 N. Y., 454, 457.)
    
      D. J. Dean for the respondents.
    The failure to publish the proposals is fatal to the validity of the contracts. (Laws 1871, chap. 213, p. 441; Laws 1870, chap. 137, § 104, p. 391.) These acts are in pari materia and are to be taken together and effect given to each. (Rogers v. Bradshaw, 20 J. R., 735 ; McCartee v. Orphan Asylum, 9 Cow., 437; Rexford v. Knight, 15 Barb., 627; Bowen v. Lease, 6 Hill, 221; People v. Utica Ins. Co., 15 J. R, 358; Jackson v. Collins, 3 Cow., 89.) The contractor was bound, at his peril, to inquire into the power of the officer to contract with him. (1 Dillon on Mun. Corp., § 372, p. 464; McSpedon v. Mayor, etc., 8 Bosw., 601; Brady v. Mayor, etc., 20 N. Y., 312; 2 Bosw., 173; Donovan, v. Mayor, etc., 33 id., 291; People v. Stout, 23 Barb., 349 ; Appleby v. Mayor, etc., 15 How., 428 ; Smith v. Mayor, etc., 6 Seld., 508; Altemus v. Mayor, etc., 
      6 Duer, 446; Hodges v. Buffalo, 2 Den., 110; Fairtitle v. Gilbert, 2 D. & E., 169; Suprs. v. Bates, 17 N. Y., 242; Butler v. Charlestown, 7 Gray, 12.)
   Rapallo, J.

By an act of the legislature passed March 29, 1871 (chap. 213 of Laws of 1871) the defendants, by the commissioner of public works, were authorized to expend in laying pipes to extend the distribution of Croton water through the city of Mew York, etc., a sum not exceeding $1,500,000, and the comptroller was directed to borrow upon the bonds of the defendants such amounts as, in the judgment of the commissioner of public works, might be necessary to execute such work, not exceeding the sum before mentioned.

In pursuance of this act the defendants, by the commissioner of public works, entered into two contracts with the plaintiff, bearing date the 1st of July, 1871, for laying pipes through various streets in the city, according to specifications prepared by the chief engineer of the Croton aqueduct, and at prices fixed by him, which he testified without contradiction were just, fair and reasonable. It was admitted by the. defendant, on the trial, that the plaintiff did work and furnished materials pursuant to these contracts to the amount, with interest, of $62,444.52, and it was shown by uncontroverted evidence that the work was well done, and was absolutely necessary in order to have a proper supply of water for the city, gnd that it was taken possession of and has been retained by the city. The proper certificates were furnished to entitle the plaintiff to draw his pay, but payment was refused by the comptroller. The sole defence insisted upon at the trial was, that the contracts had not been made after advertising for proposals, pursuant to section 104 of the charter of 1870, and on that ground alone the court dismissed the complaint.

The act of 1871, under which the contracts were made, did not require that proposals should be advertised for, but vested the commissioner of public works with the powrer, in behalf of the defendant, to expend the amount named in the act in making the improvements specified, and directed the comptroller to borrow on the bonds of the city such amounts as should in the judgment of the commissioner be necessary to execute the works, within the limit imposed by the act. The act did not in terms direct whether the work should be done by contract or otherwise, but as it is manifest that some agency must be employed by the commissioner for the actual execution of the work, the power to make contracts for that purpose is necessarily implied.

The defence rests upon the proposition that section 104 of the charter of 1870 (Laws of 1870, chap, 137) is applicable to the work done under the act of 1871 before referred to, and to the contracts in question. That section (104) provides as follows : “All contracts to be made or let by authority of the common council for' work to be done or supplies to be furnished, except printing and advertising, and all sales of personal property in the custody of the several departments or bureaus, shall be made by the appropriate heads of departments under such regulations as shall be established by ordinances of the common council. Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for the corporation, and the several parts of said work or supply shall together involve the expenditure of more than $1,000, the same shall be by contract under such regulations concerning it as shall be established by ordinance of the common council, unless by a vote of three-fourths of the members elected to such board it shall be otherwise ordered; and all contracts shall be entered into by the appropriate heads of departments, and shall be founded on sealed bids or proposals made in compliance with public notice duly advertised in newspapers of the city, such notice to be published at least ten days; and all such contracts when given shall be given to the lowest bidder,” etc.

The section then proceeds to provide for settling the terms of contract, security, the opening of bids, and other details, not material to the present inquiry.

I think that it appears very clearly from the terms of section 104, that it applies only to contracts to be made or let by authority of the common council and to work done and supplies furnished by their authority. The section provides that the contracts shall be made under such regulations as shall be established by ordinances of the common council. That when the work or supplies involve the expenditure of more than $1,000, the same shall be by contract, unless by a vote of three-fourths of the members elected to each board it shall be otherwise ordered. Clearly showing that the section refers to work ordered by the common council or done under their authority, and that the terms “ all contracts ” and “ all such contracts,” when used in the subsequent part of the section relating to advertisements for proposals, refer to contracts for work of the character mentioned in the preceding part of the section.

The act of 1871 conferred no authority upon the common council to order the work in question, or to let any contract therefor. The power was conferred directly and exclusively upon the commissioner of public works, to represent the corporation defendant in that matter. The common council had no jurisdiction over the subject and could neither initiate or stop the work, nor determine whether it should be done by contract or otherwise. .The amount to be expended, and the extent of the work to be performed, were, by the act, left to the sole judgment of the commissioner of public works, and the comptroller was peremptorily required to raise on the credit of the city such amounts as in the judgment of the commissioner should be necessary to execute the work, within the limit of $1,500,000. The act of 1871 contains no provision making section 104 of the charter applicable to work ordered by the commissioner of public works pursuant to'the authority conferred upon him, although it does apply to the bonds which may be issued under it all the existing laws pledging the faith of the city and providing sinking funds for the payment of the interest and redemption of the principal of the city debt. It is fair to presume that if it had been intended also to incorporate in the act of 1871 the existing provisions of the charter relative to contracts made, or work done by authority of the common council, they would have been in some manner referred to. On the contrary, it appears that the legislature intended to exclude this work authorized by the act of 1871, from the jurisdiction of the common council and to place it wholly under the control of the commissioner. With the wisdom or prudence of this legislation we have nothing to do; we can only interpret the law as we find it, and this designates expressly the particular agency through which the defendants were to act, to the exclusion of all others.

In the case of The People v. Van Nort (64 Barb., 205), the commissioner of public works was, by an act passed April 26, 1870, authorized in his discretion to cause water meters of approved pattern and suitable for the purpose, to be designated by him, to be placed in all places in which water was furnished for consumption for purposes of business by the department of public works, and it was held that the action of the commissioner under this statute was not subject to the provisions of section 104 of the charter, but that it was the intention of the legislature to place the whole subject in the hands of the commissioner of public works, and that the city was liable for the price of meters ordered by the commissioner without any advertisement for proposals. The intention to place the subject of laying pipes and mains, under the act of 1871, exclusively in the hands of the commissioner, is quite as apparent as was the like intention in the case of the water meters. By the act of 1871, the commissioner of public works was the only officer of the municipality authorized to decide how much of the $1,500,000 should be expended, or should be necessary to furnish the desired supply of water. Ho. action of the common council could control him in these respects or in the character or extent of the work to be done. He was authorized to expend the money in laying pipes to extend the distribution of Croton water through the city, and to furnish a sufficient supply to the institutions in charge of the department of public charities and corrections on Blackwell’s island, Ward’s island, and Randall’s island, and in laying mains necessary to deliver water at higher elevations. The manner of accomplishing these objects .was left entirely to his discretion, and the comptroller was peremptorily required to borrow such amounts as in the judgment of the commissioner might be necessary to execute said works. No other officer or body was empowered to interfere with his discretion in this respect, and no conditions were imposed upon him except that the total expenditure should not exceed $1,500,000. Without his determination of the amount to be raised no money could be procured, and the improvement could not be made. The common council was powerless in the matter. The intention to place the matter of the improvement in question under the exclusive control of the commissioner of public works is further apparent from the nature of the work and the course of legislation prior to the charter of 1870, in relation to the performance of similar work. It is very evident that the work was of a character which would, under previous laws, have been under the charge of the Croton aqueduct board. That hoard was created by chapter 383, of the Laws of 1849, entitled, “An act to create the Croton aqueduct department.” By section 4, of that act the Croton aqueduct board thereby created was vested with the powers conferred upon the former Croton aqueduct board, by the amended charter of 1849 (Laws of 1849, chap. 383, § 15), viz., to have charge of the Croton aqueduct and structures, etc., with such other duties as might be prescribed by law ; and in addition to the matters charged‘upon it by said charter it was charged, among other things, with the laying down of such mains and pipe as the common council might authorize. It was authorized to audit bills, and its requisitions for repairs and laying of mains and pipes and new work were directed to he paid by the comptroller to the amount appropriated by the common council, but no more.

By this act the power of ordering new work and the laying of mains and pipes and appropriating the necessary funds therefor was conferred upon the common council. But various acts were passed in subsequent years changing the entire system and vesting the power in respect to such works directly in the Croton aqueduct board without the intervention of the common council. By chapter 501 of the Laws of 1853, the Croton aqueduct board were authorized, for and on behalf and in the name of the mayor, aider-men and commonalty of the city of New York, to acquire lands in said city for a new reservoir within certain limits, or so much thereof as they might deem advisable. By chapter 95 of the Laws of 1863, the same board were empowered, for and on behalf and in the name of the mayor, aldermen and commonalty of the city of New York, to acquire title to such pieces of land in another locality in said city as they in their judgment should deem necessary for a like purpose, and to construct the'reservoir and such aqueducts, mains or pipes as they might deem necessary, and to purchase the machinery and materials necessary for the work at such prices and in such manner, by contract, as they might deem the public interest required. By chapter 267 of the Laws of 1864, the mayor, aldermen and commonalty, though the comptroller, was required to borrow an amount sufficient to pay for the property taken under the act of 1863 before cited, and on the estimate and requisition of the Croton aqueduct board, such further sums as might be necessary to construct equip and complete the reservoirs, not exceeding in the agrégate $200,000. By a further' act (chap. 285 of the Laws of 1865), the Croton aqueduct board, for and in behalf and in the name of the mayor, aldermen, and commonalty, were authorized to acquire such lands in the counties of Putnam and Westchester as, in the judgment of said board, might be necessary for reservoirs; and to construct the reservoirs, and such aqueducts, mains, or pipes, as they might deem necessary for the purposes of the act; and to purchase the materials and machinery at such prices, and in such manner, by contract, as they might deem the public interests required. The comptroller was required to borrow the money necessary to pay for the lands acquired, and, upon the requisition of the Croton aqueduct board, such further means as might be necessary to complete said reservoirs, to the extent of not exceeding $300,000.

By chapter 581 of the Laws of 1865, similar powers were conferred upon the Board in reference to the construction of a branch aqueduct.

It does not admit of question that the powers conferred by the acts of 1863, 1864, and 1865, before- cited, were conferred directly upon the Croton aqueduct board, and that the subjects to which those acts referred were placed beyond the jurisdiction of the common council. But a criticism is made upon a difference between the language of those acts and that of the act of 1871, in question in this case. In the former the expression is: “ The Croton aqueduct board, for and in behalf, and in the name of the mayor, aldermen and .commonalty,” are authorized, etc., while in the latter the language is: “ The mayor, aldermen and commonalty, by the commissioner of public works.” The difference is one of form only, and not of substance. The meaning is the same in both cases. And that the legislature has been accustomed to use those expressions as synonomous is shown by chapter 784 of the Laws of 1869, which authorizes the mayor, aldermen and commonalty, by the Croton aqueduct board, to expend, in the completion of the work authorized by the acts before cited, at Carmansville, and in the counties of Putnam and Westchester, sums in addition to those to which the expenditures were limited by those acts. In the original acts, as has been shown, the authority was to the Croton aqueduct board for and in behalf of the corporation, and the power to increase the same expenditures is to the corporation by the Croton aqueduct board. The last mentioned act contains the same provision as the former ones, requiring the comptroller to borrow such amounts (within the limit fixed), as, in the judgment of the said Croton aqueduct board, may be necessary to complete the works, thus showing that in both acts the power was intended to be lodged in the same hands, notwithstanding the difference in the form of expression.

By the charter of 1870, the Croton aqueduct board was abolished, and its powers transferred to the department of public works, of which the commissioner of public works was constituted the head. Hence, in the act of 1871, the power to make the improvements in question was conferred upon him instead of upon the Croton aqueduct board.

We think that the work in question was, by the act of 1871, placed wholly under the control of the commissioner of public works, as the successor of the Croton aqueduct board, in the same manner as like work had previously been placed under the exclusive control of that board ; that the matter was not under the jurisdiction or direction of the common council, and that, therefore, section 104 of the chapter of 1870 had no application to it. The contracts were consequently valid,- the work has been properly done, the city has taken possession of and retained it, and there is no legal impediment to the recovery by the plaintiff of the amount admitted to have been earned by him under his contracts.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Miller, J.

(dissenting). The question to be determined in this case is, whether the contracts entered into between the plaintiff and the commissioner of public works, on the behalf of the defendants were valid and binding. Their validity is assailed on the ground that there was no publication for proposals, as required by the city charter. This charter is entitled: “An act to reorganize the local government of the city of Hew York,” and, among other things, contains the following provision : “ All contracts to be made or let by authority of the common council, for work to be done, or supplies to be furnished, except printing and advertising, and all sales of personal property in the custody of the several departments or bureaus, shall be made by the appropriate heads of departments under such regulations as shall be established by ordinances of the common council. Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work or job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than $1,000, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, unless by a vote of three-fourths of the members elected to each board it shall be otherwise ordered ; and all contracts shall be entered into by the appropriate heads of departments, and shall be founded- on sealed bids or proposals made in compliance with public notice, duly advertised in newspapers of the city; said notice to be published at least ton days ; and all such contracts, when given, shall be given to the lowest bidder, the terms of whose contract shall be settled by the counsel to the corporation as an act of preliminary specification to the bid or proposal, and who shall give security for the faithful performance of his contract in the manner prescribed and required by ordinance; and the adequacy and sufficiency of this security shall, in addition to the justification and acknowledgment, be approved by the comptroller.” (Laws of 1870, chap. 137, p. 391, § 104.)

It will be observed that the act in question embraced the entire “local government” of the city of New York, which necessarily would comprehend and include all its various departments and everything connected with the works necessary to be performed in carrying out all public improvements, entirely independent of and without any regard whatever to any exception made by other provisions of law.

It is claimed that the contracts in question, were lawfully entered into with the commissioner of public works and were not within the meaning of the section cited, by reason of their being made by the authority of the provisions of chapter 213, Session Laws of 1871. This last act, as its title plainly indicates, was designed to extend the distribution of the Croton water through the city of New York and to lay the necessary mains to deliver it at higher elevations as well as to provide for the expense of water meters. By the first section of the last mentioned act the mayor, aldermen and commonalty of the city, by the commissioner of public works, are authorized to expend in laying pipes to extend the distribution of Croton water through the city and to furnish a sufficient supply to the institutions in charge of the departments of public charities and correction, etc., a sum not exceeding $1,500,000. The second section makes it the duty of the comptroller and authorizes and directs him to borrow upon the bonds of the city authorities such amount as in the judgment of the commissioner of public works may be necessary to execute the works not exceeding the sum named. These bonds are to be signed by the mayor and comptroller, countersigned and sealed by the clerk of the common council, and to be paid by a tax to be levied by the board of supervisors on real and personal property as the act provides. The commissioner of public works was vested by the act in question with power to expend the money; the comptroller was to borrow the money upon the bonds of the corporation and the board of supervisors to raise it by a tax on property. Although the act confers upon the commissioner full power to expend the money, it does not expressly provide, that it vests in his discretion to determine how or in what manner the work shall be done. It confers upon him no direct authority to have the work executed by the day or the job or by contract duly made. It would, therefore, appear to be left without any special directions and subject to any rule which the law had provided, and as section 104 before cited provides that all work which requires the expenditure of more than $1,000 shall be by contract, under such rules and regulations as the common council shall provide, unless by a vote of three-fourths it is otherwise ordered, notice of which is to be advertised for ten days, I am of the opinion that the expenditure of the money is controlled by this last provision. There are numerous reasons why this view of the subject is sustained. In the first place, the two acts are not in conflict, and the act of 1870 is entirely consistent with the act of 1871. Although they both relate to the same subject, they may very properly be regarded as in pari materia. Both may he considered together and effect given to each of them in this way. (Rogers v. Bradshaw, 20 J. R., 735, 744; McCartee v. Orphan Asylum, 9 Cow., 437, 507; Rexford v. Knight, 15 Barb., 627, 642.) While the act of 1871 provides for the expenditure, the issuing of bonds, raising the money and the taxation for the payment of the bonds, the act of 1870 makes provision as to the method and manner in which the contracts shall be made. They are consistent with each other and can be carried into effect with entire harmony. If it had been the intention of the legislature as is claimed, to confer upon the commissioner the entire control of the work in question, it is a fair and reasonable intendment that this would have been expressed by some provision of the act itself. It makes no provision for the work to be done in any other or in any different manner than that which is recited in the charter. And this is not, I think, a case where any thing is to be implied. The provision in the act of 1870 (§ 77) to the effect that when “ street department ’ or 1 Croton aqueduct board ’ shall occur it shall be deemed and construed to mean the department of public works and the commissioner thereof,” is in no way antagonistic to the interpretation placed upon section 104. Nor, in my opinion, does the provision of the fourth section in chapter 383 (S. Laws of 1849) creating the Croton aqueduct board, and which section makes the board responsible for the supply of water and the good order and security of all the works, and generally for the successful operation of the work performed and for persons employed, nor of section 77 of the charter of 1870, by which this personal responsibility was continued and imposed on the commissioner, conflict with the enactment in section 104. And I am unable to discover how this latter provision can in any way impair, affect or interfere with the responsibility of the commissioner because the work is to be advertised and given to the lowest bidder. If contracts are properly and carefully made under this enactment and vigilance and attention given to the supervision of the same, there is no valid reason why they should not be as carefully guarded and as safe and secure, and the work as skillfully performed and,carried into effect as when it is done by virtue of contracts which have not been advertised and not offered or taken by the lowest bidder. There is quite as much fraud, favoritism and partiality practiced in the latter cases as in any other, and even greater opportunities are furnished for imposition, extravagance and a wasteful expenditure of the public money. It is not to be assumed that irresponsible persons would be allowed to take contracts when advertised, and the commissioner was vested with ample powers-to guard against any such contingency and to see that any necessary provision was inserted to protect the public and to compel the contractor to perform his duty with the most rigid strictness and fidelity. The contract itself should provide, as was done here, for proper directions, and the supervision by competent engineers, under the control of the commissioner, as well as that the contractors be subject to obey all orders and directions of the chief engineer, or some suitable officer of the department. It is by no means manifest that the work required to be done was of such a peculiar character, and so nice and difficult, as to demand such extraordinary skill and ingenuity that it could not fairly be made a matter of competition among those who were accustomed to perform such jobs; and it cannot, I think, be doubted that a proper and careful performance of the same could be secured by a rigid supervision'over the contractors, and a bond with appropriate conditions would provide a full indemnity against carelessness and unskillfullness, and ample security against all loss of damages which might, perchance, be occasioned thereby. The enactments to which we have been referred, which authorize the construction of additional public works connected with the Croton aqueduct, and the distribution of the water, the payment of the work done, which recognize the personal responsibility of the members of the Croton aqueduct board, or of the commissioner of public works cannot, I think, affect the construction to be placed upon the provisions discussed. S"or does it, in my opinion, alter the case, because the work in question was to be paid for by money raised by issuing bonds of the city, as the law provided, or because the common council was vested with no power, under its charter, directly to raise money for any such purpose, or in any other manner than was provided by legislative enactment, or had no authority to contract for new works; and the department of public works was vested with the control of the structures and property connected with the supply and distribution of the Croton aqueduct water. These considerations can have no weight in authorizing the interpretation of a statute different from its plain import and intention. The language of section 104 is broad and comprehensive, and it should receive a liberal construction, having in view the purposes which it was designed to accomplish. The first part of the section refers to “all contracts to be made or let by the authority of the common council,” and requires that they shall be made by the appropriate heads of departments; but this does not limit the effect of the provision, for the very next clause provides for “ any work which is necessary to be done to complete or perfect a particular job,” which may very properly include the work provided for in the act of 1871, which was intended to perfect and complete the supply of water through the city, as therein provided, as well as to include all work done for the corporation, of any name and nature whatsoever, without regard to what precedes it, or whether ordered directly by the common council or by one of the departments. And, as if to render the provision more certain, complete and emphatic, it again provides that “ all contracts shall be entered into by the appropriate heads of departments,” without any restriction or limitation whatever. Surely this comprehends every kind of contract which may emanate from any of the departments. And every one of these, unless the common council by a vote of three-fourths otherwise directs, must be founded on sealed bids or proposals made after notice has been given as required by the act. The department of public works is not relieved from these limitations of the charter; and while the act' of 1871 provides the means to meet the outlays which must be expended for the improvement, the mode of the expenditure must be followed as the charter prescribes. The spirit of the section is founded upon the idea that all contracts are to be made by and through the departments; and contracts made by “ the mayor, aldermen and commonalty of the city of New York” under the act of 1871, are made by the authority of the common council as much as any provided for in section 104, for the reason that all contracts are made by the heads of departments. The section referred to is one of great importance to the welfare and interests of a large municipal corporation, acting through its public officials and agents, and was designed to establish a policy which should be carried into effect without regard to technicalities or a narrow interpretation which would render the law of no avail.

The case of The People v. Van Nort (64 Barb., 204), upon which the plaintiff relies, is not in conflict with the views expressed. In that case, the law authorized the commissioner of public works, in his discretion, to cause water-meters, of approved pattern, and suitable for the purpose, to be designated by him., to be placed in certain buildings which were named ; and it was held that this provision and section 114 of the act of 1870 were in conflict with each other; and the relator having furnished the water-meters to the commissioner, at his request, and in good faith, relying on this statute, a mandamus would lie. It will be seen that the commissioner was vested with a discretion; that the water-meters were to be of an approved pattern, which could not well be obtained by advertising for the lowest bidder; that they were to be selected. by the commissioner himself. He was thus precluded from advertising, while no discretion whatever is given to the commissioner under the act of 1871.

Some remarks are made by the learned judge which restrict the operation of section 104 to contracts, made or let by authority of the common council, but they were not necessary to the decision of the case, and are, therefore obiter. Bésides, they do not, in my opinion, place a proper construction upon the one hundred and fourteenth section of the act. The principle decided in Peterson v. The People (17 N. Y., 449), has no application to the case at bar, and is not in conflict with the doctrine herein laid down. The result of the discussion had is, that no authority has been conferred by either the common council or the legislature to perform the work in question in any other manner than that required by the city charter. The commissioner had no discretion whatever, and was bound to follow the statute ; and, although all the parties may have acted in entire good faith, and the work have been properly performed, no recovery can be had upon the contracts in violation of the limitation of the powers of the officer who acted on behalf of the corporation.

The judgment of the General Term was right, and must be affirmed with costs.

For reversal: Church, Ch. J., Allen, Rapallo and Andrews, JJ.

For affirmance : Grover, Folger and Miller, JJ.

Judgment reversed.  