
    CHARLES A. LEWIS and another, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.
    Appropriation— expendiim'e in excess of — when a defense.
    
    Appeal from a judgment, in favor of the plaintiff, entered on a verdict directed by the court.
    This action was brought to recover the sum of $548.38, being the price of a quantity of fish delivered by the plaintiffs to the department of public parks for its use. The deliveries were made daily between the 30th July, 1873 and the 1st January, 1874, upon two orders, in writing, of the department of public parks, given to the plaintiff, for the delivery of seventy-five pounds of fish per day, at seven cents per pound. The bills of the fish were presented monthly by the plaintiffs; and it appears that the bill from June first to September thirtieth, amounting to $267.20, had been audited and allowed by the officers of the department of public parks, and that another bill, from October to and including the 31st December, 1873, amounting to $280.98, had also been so audited and allowed, and in their certificates of audit and allowance the officers of the department certified “ that the articles named in the said bills have been received, in good condition, by the department, solely for its use, and were necessary for the lawful uses and purposes of the said department, and that the prices charged therein are reasonable and proper, and that the amount of said bills does not exceed the unexpended balance of the appropriation duly made to the said department therefor.” The answer denied none of the allegations of the complaint, but set up that the sum of $487,966 was appropriated to the department of the public parks, and that prior to the 13th February, 1874, that sum had been paid out and expended, in paying claims lawfully
    
      incurred and chargeable to and payable from said appropriation for the year 1873, except the sum of $54.64; and the answer insisted that “ the department had no power or authority to incur any expense, for any purpose, in excess of the appropriation made for such purpose, and that the claim of the plaintiff, if incurred, had been incurred in violation of the aforesaid provision, and in excess of such expense as made chargeable by law.”
    The General Term held, that it was incumbent on the defendants, if they wished to assert that the department had exceeded its authority in incurring the expenses, to have shown upon the trial that the amounts paid out subsequent to January 1, 1874, were paid upon claims which existed, or were prior in right and obligation to those of the plaintiffs, and that as they had failed to show this, a verdict was rightly directed in favor of the plaintiffs.
    
      D. J. Deem, for appellant. W. H. Townly, for respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.'

Judgment affirmed.  