
    The Union Cemetery Association et al., Resp’ts, v. The City of Buffalo, Daniel W. McConnell et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    Municipal corporations—Assessment — Charter of Buffalo — Laws 1870, chap. 519, tit. 2, § 80.
    By the provisions of the charter of Buffalo money can be drawn from the treasury only on warrants authorized by the common council, signed by the mayor or city clerk and countersigned by the comptroller, specifying the purpose for which they are drawn and the fund out of which they are payable. A contract with one McConnell provided that payments should be made to him semi-monthly as the work progressed, at the discretion of the common council, upon an estimate of the engineer of the amount of work actually performed. The engineer, knowing that said contractor had not performed the work in accordance with the specifications, recommended to the common council payment out of the fund. Held, that such facts would not justify the court in restraining the city and its officers from performing its duty toward the contract or which the charter had plainly devolved upon them, of auditing the contractor’s bill and determining what sums shall be paid to him.
    Appeal from a judgment of the general term of the fifth judicial department, which affirmed in part and reversed in part a judgment of the special term entered upon the report of a referee.
    The judgment of the general term reversed that part of the special term judgment which declared certain assessments upon lands of the plaintiffs void, and enjoined the city of Buffalo from enforcing them, and affirmed that part of said judgment which restrained the said city from paying any money to the defendant McConnell upon a contract with him for macadamizing Delaware street in said city.
    
      George F. Stillwell, for app’lt, Daniel W. McConnell; Frank C. Laughlin, for app’lt, The City of Buffialo; Frank F. Perkins, for resp’ts.
    
      
       See 42 Hun, 651, mem.
      
    
   Brown, J.

This action,was brought by the Union Cemetery of Buffalo and six other plaintiffs to determine the legality of certain assessments upon the plaintiffs’ premises levied to pay the expenses of macadamizing Delaware street in the city of Buffalo, and. to enjoin the said city from enforcing the collection thereof ánd to restrain payment of any money to the defendant McConnell, who was the contractor for doing said work

The judgment entered upon the report of -the referee before ■ whom the action was tried declared said assessments void, restrained their collection, and enjoined the city and its officers from drawing any order or warrant or from directing any order or warrant to be drawn upon the fund created by said assessment to the defendant McConnell or any other person, on account of the work done on said Delaware street, until said work should be done and completed as required by the specifications and until.the further order of the court.

Upon appeal to the general term that court reversed that ¡Dart of the judgment which declared the assessments void and restrained their collection, and adjudged, “ that the judgment appealed from in so far as it restrains, enjoins and prevents the city of Buffalo, its officers and agents, and particularly the defendant, the treasurer of the city of Buffalo, and each and every of them, from paying out or expending any money from the fund created or to be created by the collection of the assessments contained in the assessment roll mentioned and referred to in the pleadings or any part of said assessments upon the warrants heretofore drawn upon said fund, etc., is affirmed."

From the last-quoted part of the judgment the city of Buffalo and the defendant McConnell have appealed to this court. We are of the opinion that the judgment appealed from cannot be sustained.

Without expressing any opinion whether an action might be maintained, under chapter 531 of the Laws of 1881, to restrain payments to the contractor upon the facts alleged in the complaint, it is sufficient to say that the action was not brought under that statute and by reason of obvious defects cannot now be supported by it, and that the findings of the referee do not sustain the general term judgment. There is no finding that McConnell holds or has ever had any orders or warrants that have not been paid. The only finding on that subject is, “ that there has been collected on said roll the^sum of $983.93, and there has been paid out on orders drawn thereon $619.” But treating the general term judgment as an affirmation of the special term and intended to restrain generally payments from the fund until the work was completed, the judgment must be reversed.

By the provisions of the charter, title 2, § 30, chap. 519, Laws of 1870, money can be drawn from the treasury only on warrants anthorized by the common council, signed by the mayor or city clerk, and countersigned by the comptroller, specifying the purpose for which they are drawn and the fund out of which they are payable.

The contract with McConnell provided that payments should be'made to him semi-monthly as the yrork progresses, at the discretion of the common council, upon an estimate of the engineer of the amount of work actually performed.

The only finding as to any wrong-doing by any city officer is that the city engineer, knowing that said contractor had not performed the work in accordance with the specifications, had recommended to the common "council payment to said contractor out of the fund.

There is no findiftg that the common council had adopted said recommendation, or were about to do so, or had fraudulently or wrongfully directed payments to said contractor, or that the mayor, city clerk or comptroller, without whose acts the money could not be drawn from the treasury, had or were threatening to do any wrong or improper act.

The case seems barren, therefore, of any fact that would justify the court in restraining the city and its officers from performing its duty toward the contract in question which the charter has plainly devolved upon them.

The record does not contain any opinion of the general term, and we are not informed of the reasons for the judgment of that learned court. As the case came to us, we must asume that the assessment and the contract with McConnell áre valid.

The plaintiffs’ contention is that as the work was not done in accordance with the specifications, and has not materially benefited or improved their property, the contractor should not be paid. Their claim is certainly reasonable and equitable, and the contractor should not be paid until he has performed his contract.

But the charter has devolved upon the common council the duty of auditing the contractor’s bills, and determining when, and in what sums, he should be paid, and, in the absence of any finding by the referee that that duty was not being properly and rightfully performed, the court cannot interfere.

We are of the opinion that the complaint states but one cause of action, and that assuming, as we must, that the assessments were legal, the judgment appealed from cannot be sustained on the facts found by the referee. It must, therefore, be reversed, and the complaint dismissed, with costs to the appellants in all courts.

All concur, except Bradley and Haight, JJ., not sitting.  