
    Percy S. Hildreth, Appellant, v. The City of New York, Respondent.
    First Department,
    May 6, 1910.
    Municipal corporations — commissioner of highways, city of Mew York— contract employing engineer to draw plans for a compensation based on a percentage of cost — approval by board of estimate and apportionment prerequisite.
    The commissioner of highways .in the city of 2Tew Yprlc is not authorized by section 455 of the charter and chapter 665 óf the Laws of 1897, to enter into a contract with a civil engineer to furnish plans and specifications and to take charge of a contemplated public improvement for a compensation to be based upon a percentage of the cost.
    The power to appoint a consulting engineer on such work does not authorize such contract as it is not one fixing a salary within the provisions of section 456 of the charter.
    Moreover, until the plans and specifications are submitted to and approved by the board of estimate and apportionment no legal contract for doing the work can be made.
    
      Appeal by the-plaintiff, Percy S. Hildreth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on. the 2d day of February, 1910, upon the decision of the court, rendered after a trial at the New York-Trial Term a jury having been waived, dismissing the complaint herein.
    
      William I). Leonard,, for the appellant.
    
      Theodore Connoly, for the respondent. .
   Per Curiam :

This case, in principle, cannot be distinguished from Hildreth v. City of New York (111 App. Div. 63; affd., 190 N. Y. 513). It is true that the statutes (Greater N. Y. Charter [Laws of 1897, chap. 378], § 455 ; Laws of 1897, chap. 665) under which the commissioner of highways sought to appoint the plaintiff consulting engineer are slightly'different from the statutes (Greater N. Y. Charter [Laws of 1897, chap. 378], § 455; Laws of 1896, chap. 57, as amd. by Laws of 1897, chap. 679) under which the appointment was sought to be made in the case referred to. .But this difference in no way destroys the effect of that decision. The fact that the commissioner was empowered and directed to proceed to construct the drive and parkway did not authorize him to enter into a contract with the plaintiff to furnish plans and specifications and take charge of a portion of the work and pay him a compensation based upon a percentage of the cost. It may be that the commissioner had power to appoint the plaintiff as consulting engineer in his department, but if so he had no power to make a contract with him as such consulting engineer to furnish plans and specifications and contracts for the construction of a work, not authorized. Such a contract was not fixing the salary of a consulting engineer within the provisions of section 456 of the Greater New York, charter. The plans and specifications Were never submitted to or approved by'the board of estimate-and apportionment, Until that had been done, a legal contract could not be made. If, after the plans and specifications were prepared by the plaintiff, the same had been accepted and' approved by the board of estimate and apportionment and the drive and parkway constructed thereunder, an entirely different question would be presented.

Whether or not the city is liable to the plaintiff for the services rendered by him in preparing the plans and specifications, we do not pass upon because the question is not before us. All that we decide is that the contract upon which the plaintiff predicates his right to a recovery imposes no legal liability upon the city.

The judgment appealed from, therefore, is affirmed, with costs to the respondent.

Present — Ingraham, P. J., McLaughlin, Laughlin and Mil. ler, JJ.

Judgment affirmed, with 'costs.  