
    Robert E. Burger, Pl’ff, v. William D. Koelsch et al. Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed March, 1894.)
    
    1. Municipal corporations—Ordinances.
    City ordinances have the force of law, and contracts in violation of them are illegal.
    
      2. Same—Contract—Prohibited by statute.
    When á contract is made to do an act prohibited by statute, no action can be maintained to enforce performance, or to obtain damages for a breach thereof ; nor, if the claim is founded really upon the contract, will an action on the case for damages be supported.
    3. Same—Building contract—Owner’s duty.
    Where a building contract conflicts with the ordinances of a city, it is not incumbent upon the owner to so change the plans and specifications as to conform thereto.
    4. Same—Enforcement.
    When it appears that the contract, which the plaintiff is asking to enforce, is illegal, it is the duty of the court to refuse to proceed with the action further and leave the parties where they have placed themselves.
    5. Appeal—First instance.
    An objection, which could have been obviated if made below, cannot be made for the first time on appeal.
    Motion by defendants for a new trial upon exceptions ordered to be heard in the first instance at the general term, after a verdict directed for the plaintiff at the Brie circuit.
    
      George M. Osgoodby, for pl’ff; Frank B. Perkins, for def’ts.
   Lewis, J.

The parties entered into a written contract on the 18th day of June, 1892, by the terms of which the plaintiff agreed to provide the materials and construct a three-story brick building on Chenango street in the city of Buffalo, for the consideration of $9,800, according to certain plans and specifications furnished by the defendant and forming part of the contract. The lot upon which the building was to be located was thirty feet front and rear and ninety-two feet in depth. The plans located the front of the proposed building upon the line of Chenango street and called for bay windows upon the front of the building projecting two feet into the street. The building was to be twenty-eight feet wide on Chenango street and the entire width of the lot in the rear and seventy-two feet long. The contract provided that the outside brick walls of the first story should be twelve inches only in thickness. An ordinance of the city of Buffalo, in force at the timé of making this contract and still in force, provided that the external walls of the first story of three-storv brick buildings constructed in the city should be of the minimum thickness of sixteen inches. The ordinances further provided that every building erected contrary to the provisions of the ordinances of the city shall be deemed to be a common nuisance, and the superintendent of buildings may order the same removed and, in case the owner shall neglect or refuse to remove such building within five day after notice so to do, the board of public works may remove it at the expense of the owner. The charter of the city provided that before the construction of any building in the city is commenced, the owner shall file with the superintendent of buildings a sworn statement of the character and use of the building he proposes to erect and its location on his premises, with a copy of the plans and specifications of such building, which statement shall contain the name and residence of the owner and the purposes for, which the building is designed. The superintendent shall, within ten days after the filing of the plans, specifications and statement approve the same or indicate in writing the alterations to be made therein to make them comply with the general laws of the stateand ordinances of the city. But no building shall be erected or remodelled until the approval of the superintendent shall be obtained ami a written permit issued by him to the owner or builder of such building.

The defendants presented plans specifications to superintendent for the purpose of obtaining the required permit, He refused his consent for the reasons : first, that the plans contemplated that the brick walls of the first story of the building were to be only of the thickness of twelve inches, second, that the bay windows would encroach upon the street, and various other objections to the plans were made by the superintendent. Defendant thereupon informed the plaintiff of the obstacles to the erection of the building, and the plaintiff suggested that changes be made in the plans and specifications so that they would conform to the ordinances of the city. The defendant declined to do so because of the additional expense, and for the reason that the increase of the thickness of the walls would make the stores, to which the first story was to be devoted, too narrow. The plaintiff, thereupon, proposed to the defendants that the plan of building of brick should be abandoned and that the building should be constructed of wood to which the defendants assented, and procured plans and specifications for a wood building and submitted them to the plaintiff and other builders for bids. The defendants, thereafter, let the contract to build a wood building upon the lot to another builder whose bid was considerably lower than that of the plaintiff's; the plaintiff, thereupon, claimed damages of the defendants for a breach of thecont ract and instituted this action. It was stipulated on the trial that the plaintiffs’ damages were $350 and the court directed a verdict for the plaintiff for that amount. Ho exception was taken by the defendant to the direction of the verdict. At the close of the plaintiff’s evidence the ordinance prohibiting the erection of the building with the walls of the thickness mentioned, as in evidence, and the defendants, at the close of the plaintiff’s case, moved for a nonsuit. The motion was denied and the defendants •duly excepted. It therefore appeared, at this stage of the trial, that the construction of the building according to the contract ■would have been in direct violation of the city ordinances; it would have been a nuisance if constructed, which the hoard of public works could have abated. The ordinance absolutely prohibiting the erection of the building according to the terms of the contract. The agreement was, therefore, unlawful. City ordinances have the force of law, and contracts in violation of them are illegal. 1 Dill. Mun. Corp., § 308 and note. A contract void for illegality is no contract. 2 Whart. on Contr. § 935. Where a contract is to do a thing which cannot be performed without a violation of the law, it is' void whether the parties knew the law or not. Law of Contr. by Sir W. R. Anson, 191. When a contract is made to do an act prohibited by statute no action can be maintained to enforce performance or to obtain damages for a breach thereof; nor, if the claim be founded really upon the-contract, will an action on the cáse for damages be supported. 1 Story on Contr. § 769 ; see Metc, on Contr., 247-250 ; Broom’s Com. Law, 357; Brinkman v. Eisler, 26 St. Rep. 94; 7 N. Y. Supp. 193 ; affirmed, 40 St. Rep. 865 ; 16 N. Y. Supp. 154. It claimed by the plaintiff that it was incumbent upon the defendants t$ so change and modify the plans and specifications that they iwould not conflict with the ordinances of the city. There is an 'absence of any evidence as to the increased expense of construct- > ing the building with sixteen instead of twelve inch walls. But, manifestly, the additional expense would have been considerable, and then, the width of the stores would have been materially lessened, and we do not see, as between the parties having equal opportunities to know, when they entered into the contract, of the existence of the ordinance making the contract illegal, that the defendants were under any obligations to make the changes in the plans and specifications suggested. Had the alterations been trivial and inexpensive it may be that the rule would be different. A further answer to this claim is that the complaint is based upon the original contract; the contract is alleged, the breach stated and damages are claimed on account thereof. There is no allegation that the defendants refused to make the changes suggested by plaintiff in the contract so as to-avoid the illegal features; if so changed it would have been anew contract, involving new bids for the work; the defendants were not obliged to make a new contract with plaintiff ; the plaintiff occupies the position of appearing in court with an illegal contract, one that he was powerless to perform, a contract which, if he had performed, he would have created a nuisance, and is asking damages for the breach of it. We are not referred to any case holding that when parties have made an illegal contract either party is-under implied obligation to make a new one; if one is bound so-to do the other must be, for there must be mutuality of contract, an illegal contract cannot be made a foundation of an implied assumpsit. Gillet v. Phillips, 13 N. Y. 119. A party to an illegal contract will be released therefrom while it remains executory. Strait v. Nat. Harrow Co., 18 N. Y. Supp. 224; 1 Story on Cont. § 617. It is claimed by the plaintiff that the defendants’ answer failed to raise an issue as to the illegality of the contract The answer in that regard is informal and somewhat imperfect. It does, however, allege that the defendants presented their plans and specifications to the superintendent of buildings and that he, by virtue of his office and the law and ordinances, did insist arid maintain that said building should not and could not, under the law and ordinances aforesaid, be erected or constructed according to said plans and specifications, and thereby prevented the erection and construction of said building under and according to said contract. Then follow allegations to the effect that the contract was abandoned by the mutual consent of the parties, and other plans adopted as stated. The prohibitory ordinance mentioned was received in evidence without the question being raised by the-plaintiff as to the sufficiency of the defendants’ answer. Had the attention of the court been called to the answer, it could, if necessary, have been so amended as to obviate the objection; it is too late, upon appeal, to raise the question. But, without reference to the pleadings when it was made to appear that it was an illegal contract plaintiff was asking to enforce, it was the duty of the court to refuse to proceed with the action further, and leave the ?arties where they had placed themselves. Richardson v. Buhl, 77 Mich. 661. The plaintiff failed to make a case entitling him to a verdict. The defendants’ motion for a nonsuit should have been granted; the verdict should be set aside and a new trial granted, with costs to abide the event.

Dwight, P. J., Haight, and Bradley, JJ., concur.  