
    Kramrath v. City of Albany.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Municipal Cobpobations—Fiscal Management—Disbubsements.
    • The charter cf the city of Albany (Laws If. Y. 1876, c. 173) provides that “it shall not be .lawful for any member or members of the common council, whether a committee or otherwise, to make any disbursements * * * or to incur any expense on behalf of the city for repairs or supplies, or to audit accounts therefor, unless-previously ordered by the common council. ” Held that, under authority from the common council to “fit up’’rooms for city officers, a committee may make contracts-with a tradesman for the necessary supplies, though the council have not specified-the amount tu be disbursed for such purpose. Leabned, P. J., dissenting.
    0. Same—Powebs op Committee—Irbegulabities.
    In executing such authority the committee acted informally, the supplies, etc., being furnished on the order of one member with the approval of another; hut before the committee, could meet to formally approve their acts a new committee was appointed, which disallowed the bill, though it was not disputed that the supplies and services were proper and the charge reasonable. Held, that the irregularity of the first committee’s action could not defeat the tradesman’s just claim.
    8. Same—Actions—Evidence.
    In an action for such supplies, etc., the admission of evidence that, in other cases somewhat similar, the common council had audited and allowed the claims of other tradesmen, was harmless, plaintiff having established his claim independently of it.
    Appeal from Albany county court.
    Action by Martin Kramrath against the city of Albany to recover for merchandise, consisting of carpets, oil-cloths, rugs, etc., furnished by the plaintiff to fit up rooms in the city building for certain officers. On the 10th day of February, 1880, the city hall in the city of Albany was destroyed by fire. The common council of the city, on the 12th day of February, 1880, duly adopted the following resolution: “Resolved, that the name of the city building be, and the same hereby is, changed to ‘ City Hall and City Building;’ that the committee on public buildings and parks be and is hereby authorized and directed to set apart and fit up rooms for the use of city officers who have been left without any office room by reason of the destruction of the city hall by fire; that said committee also fit up a common-council chamber in said building for the-meetings of the board of aldermen.” This resolution was on the 13th day of February, 1880, duly approved by the then mayor of the defendant. The-members of the committee on public buildings and parks, referred to in the-aforesaid resolution were, president, Thomas Cavanaugh; aldermen, John T. Gorman, William DayErmand, William Manson, and John Zimmerman. The city officers who had been left without any office room by reason of the destruction of the city hall by fire were the chamberlain, board of health officers, receiver of taxes, mayor, and city surveyor and engineer. The said committee on public buildings and parks set apart and ordered to be fitted up, in-the city building, rooms for the use of said officers. In the necessary fitting up of rooms in the city building for the city officers who had been left without office room by reason of the destruction of the city hall by fire, the plaintiff sold and delivered the said goods, and performed labor, to the amount $242.98. The plaintiff duly verified his account, and presented it for audit and payment, but the common council wholly rejected it, and payment was refused. The goods were first ordered by the janitor of the city building. The articles-were selected by the officers for their various rooms; and, before they were furnished, Mr. Zimmermgn, of the committee, informed the plaintiff that it
    
      was all right and that he should furnish the goods. Mr. Gorman, of the committee, told Mr. Zimmerman to order them. There was no formal meeting of the committee on public parks and buildings at which the order for the goods was authorized. , Ho objection was made on the trial that the goods were not necessary and suitable, and of the value claimed. In April following a new committee was appointed, which reported against allowing the bill. Judgment was rendered for plaintiff, and defendant appeals.
    Argued before Learned, P J., and Landon and Ingalls, JJ.
    D. Cady Herrick, for appellant. Edward J. Meeyan, for respondent.
   Landon, J.

The common council directed, its committee to “fit up” the rooms in question. Under the circumstances it was necessary and proper to fit them up. It was proper to employ a tradesman to do it. The plaintiff did it, and, as far as the case shows, did it well, and rendered a reasonable bill. 1-Ie received his order from a member of the committee. It does not appear that the committee at a regular meeting gave this member direction to give the order. It does appear that one other member requested him to give the order, and it also appears that the committee acted informally in various like labors in placing the city officers in working quarters after the destruction of the city hall by fire. Before this committee had an opportunity to pass upon the plaintiff’s bill an election occurred, and a new committee was appointed, which rejected the bill. Assuming that the committee had the authority whicli the resolution of the common council purported to confer, we do not think under the circumstances, and for the reasons pointed out by us in Clute v. Robison, 38 Hun, 283, that the irregularity of its action can be urged to defeat the just claim of the plaintiff. McCloskey v. City of Albany, 7 Hun, 472; Nelson v. Mayor, 63 N. Y. 535. Did the charter forbid the common council to confer authority upon the committee? Section 2, c. 173, Laws 1876, provides: “It shall not be lawful for any member or members of the common council, whether a committee or otherwise, to make any disbursements of corporate moneys, or to incur any expense in behalf of the city (of Albany) for repairs or supplies, or to audit accounts therefor, unless previously ordered by the common council, except for the support of the almshouse, and for the support of the lamp and gas department.” This means that no committee shall incur any expense for supplies unless authorized by the common council to do so, and the implication is that, if so ordered, then the committee can incur such expense. As the statute did not forbid, the common council could authorize its committee to fit up the rooms. Edwards v. City of Watertown, 24 Hun, 426. The common council cannot delegate its governmental acts to a committee, but can its merely business acts, such as pertain to the care of and supplies for its buildings. The one requires the wisdom and judgment of the entire body; the other is the performance of service ministerial and administrative in its character. This distinction is pointed out in Birdsall v. Clark, 73 N. Y. 73. The present case illustrates it. The city hall was destroyed, and the city officers had no offices. Should another building belonging to the city be appropriated as a city hall? This was a governmental act, and it received as it ought, the action of the entire common council. Should the rooms be “fitted up” for offices? This was another governmental act, requiring the action of the common council. Who should do the administrative labor of executing the order of the Common council to “fit up” the rooms? Clearly the whole body could not leave its chamber and go among the artisans and tradesmen. Its members are not the common council, except when duly assembled. It must ex necessitate rel delegate somebody, and it is plain that it can delegate a committee either to buy the necessary carpets and chairs, etc., or to examine them •and report for further directions. Here the language of its authorization was to “fit up, ”—that is, to buy outright. We are clearly of the opinion that the committee was empowered to order these supplies from the plaintiff. If the authority had been exceeded, a different question would arise.

Evidence was given tending to show -that in other cases somewhat similar the common council had audited and allowed the claims of other tradesmen. Mo harm was done by this evidence. The plaintiff established his claim independently of it; and since it is admitted that, if the defendant is liable, an action is the proper remedy, the plaintiff was entitled to judgment. Judgment affirmed, with costs.

Ingalls, J., concurs.

Learned, P. J.,

(dissenting.) I am of the opinion that the section of the statute restricting the powers of members of the common council and of committee cannot be so liberally construed. To what do the words “unless previously ordered ” refer? Not, I think, to the committee. The statute does not mean simply that no member or committee shall make disbursements, etc., unless previously ordered so to do by the common council. It goes further, and is intended to take from the common council the power to authorize a committee to make disbursements, etc., at its discretion. The words “unless previously ordered” refer to the “disbursements” and “expense.” These must be ordered by the common council. I do not mean that the common council must themselves act in every trifling purchase. They may order disbursements of such a kind and of such an amount; and then the committee may carry out this order. In the present case the authority of the resolution was unlimited, except as to the building to be occupied. The committee was to “set apart and fit up rooms.” Mo limitation was imposed as to expense or as to quality of fittings. Whether expense should be $500 or $50,000 was left in the power of the committee. The very evil at which the section is aimed is that of putting an unlimited power to make disbursements and create expense in the hands of a committee. If the resolution had ordered the committee to expend not to exceed a certain sum in the purchase of carpets for these rooms, it would, I think, have been proper. As it is, 1 cannot think it so.  