
    Arthur J. Rieser Company, Inc., Respondent, v. The City of New York, Impleaded, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    City of New York — liable only for work authorized in section 419 of charter — Magistrate’s Court — power to bind city to pay for alterations.
    In the absence of an emergency where overwhelming necessity requires immediate performance of work, the city of New York can be held liable only for work authorized as provided in section 419 of the Greater New York Charter.
    
      The chief clerk of the Magistrate’s Court of the city of New York, in the absence of provision of law, has no power to bind the city to pay for alterations in premises used by said court.
    Appeal by the defendant City of New York from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of the plaintiff.
    Archibald R. Watson, corporation counsel (Terence Farley and Clarence L. Barber, of counsel), for appellant.
    Eugene I. Gottlieb, for respondent.
   Lehman, J.

The plaintiff performed certain work in making alterations in a court room of one of the Magistrate’s Courts under a written contract with the city. When the work under the written contract had been performed, according to. the plans and specifications, the chief clerk of the Magistrate’s Court found that the complaint desk was built too high. He testifies: I told Mr. Rieser that as the work was, it would not be practicable and could not be used, and I also called his attention to what alterations were necessary.” Thereafter the plaintiff made these alterations upon the chief clerk’s written order, and has now recovered judgment for the cost of the work done.

The charter provides exactly how the city can be. bound by contract, and it fails to give the chief clerk of the Magistrate’s Court any power to bind the city by alterations in premises used by the Magistrate’s Court. Certainly no clerk of a court in the absence of express provision of law has power to bind the city to pay for alterations or work done under written contract of the city, in pursuance of plans and specifixations, merely because he thinks these plans and specifications not practicable.”

It is too well established to require citation that at least in the absence of an emergency where overwhelming necessity requires immediate performance of work, the city can be held liable only for work authorized as provided in section 419 of the Greater New York Charter. The learned trial justice recognized this rule, but held that a resolution adopted by the board of estimate on March 7,1912, authorized an action for the actual outlay of the contract, where work has been done in good faith for the city, but not done in the manner required to create a legal liability on the part of the city. This resolution was obviously by its terms never intended to, and could not, impose upon the city any legal liability where, under the charter, no legal liability existed, and is entirely immaterial to this cause of action.

Judgment should therefore be reversed, with costs, and the complaint dismissed, with costs.

Page and Bijur, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.  