
    Ernest M. Culp, Appellant, v. The City of New York, Respondent.
    Second Department,
    July 27, 1911.
    Contract municipal contract, city of New York — power of commissioner of public works to act for borough president — presumption where commissioner signs certificate of necessity.
    As section 383 of the charter of the city of New York provides that the commissioner of public works, in the absence or illness of the borough president, or upon his request, may discharge the duties of the president, a municipal contractor who, having a right to remove certain materials used in constructing sewer basins, has sold them to the city of New York at its request after a certificate of necessity for the purchase by the city had been signed by the commissioner of public works, need not prove, in order to recover the purchase price from the city, that the commissioner of public works was formally authorized to sign the certificate instead of the borough president.
    As the statute gives the commissioner power to act for the president, and as it is presumed that a public Officer performs ■ his duty within the power conferred by statute, the burden is upon the city to show that the commissioner was not duly authorized to sign the certificate.
    Appeal by the plaintiff, Ernest M. Culp, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Kings on the 13th day of May, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order bearing date the 20th day of May, 1910, and entered in said clerk’s office denying the plaintiff’s motion for a new trial.
    
      William L. Bowman, for the appellant.
    
      Clarence L. Barber [Theodore Connoly and Archibald R. Watson with him on the brief], for the respondent.
   Thomas, J.:

The parties contracted for the construction of sewer basins by plaintiff at prices related to the several elements of the work. The contract was performed and the plaintiff paid, but the performance of the work required certain sheathing, and the contract contemplated that its fulfillment would either allow or permit the removal of sheathing. Defendant’s officers deemed it advantageous to keep in place certain sheathing, although they recognized plaintiff’s right to withdraw it, and proper official action was taken to purchase it on behalf of the. defendant at the sum of $522.92. The certificate, known as the certificate of necessity, was signed by the commissioner of public works, rather than by the president of the borough, and in an action brought to recover for this material the defendant, among other things, objected that the certificate was improperly executed, and the complaint was dismissed.

Section 383 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 383) provides that the commissioner of public works, in the absence, or illness, of the president of the borough, shall discharge "all the duties of such president, and also that the powers conferred and duties imposed upon the president may be exercised and performed by the commissioner of public works “upon the request of said president,” or if such commissioner shall not have been appointed, then such powers and duties may be exercised and performed “ by any subordinate duly appointed by the president of said borough under the powers conferred upon him by this act, and duly designated thereto in writing; and such powers and duties when exercised or performed by such commissioner of public works or other appointee shall be regarded as having been exercised or performed by such president in the same manner as if such powers and duties had been actually exercised or performed by such president personally. ” It will be observed that the commissioner of public works acts for the president upon his request or in casé of his absence or illness without formal designation, and by the force of the statute, and that the appointee is enabled only by an instrument in writing. • The plaintiff, solicited by the defendant’s officers to sell the sheathing in question, found the evidences of such official action as the statute requires to justify him in selling the property to the city, in consideration of its promised payment therefor. When, however, he came to court, the defendant, in the enjoyment of his property, would escape payment by insisting that' the burden was upon him to make his way . back through the transaction and discover .that at the time and for the purpose in question, the president requested the commis-' sioner to act for him, or that perchance the president was absent, or maybe ill. The rights of a citizen contracting with the city do not rest upon such uncertain basis. The statute gives the commissioner the power, The occasion for its exercise depends upon the request of the president, made it may be informally and orally, or upon the condition of the: president’s absence for the moment, or his physical incapacity or indisposition. Whatever convenience or necessity within- the intention of the statute occasioned the exercise of the power by the commissioner is quite within the probable knowledge of the defendant’s officials, and beyond convenient ascertainment by the plaintiff. What was done the statute authorized the- commissioner to do.. The presumption is that he did not usurp a function, but rather that he did his duty and kept within the power, conferréd by the statute. If it was done; without the statute, let the defendant make proof of it. Presumptively' the- defendant owes the amount stipulated to be paid'by it through its officials.

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

, Jerks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. ,  