
    Richmond County Society for the Prevention of Cruelty to Children, Respondent, v. The City of New York, Appellant.
    
      Action by a society for the prevention of cruelty to children against the city of New York — the question whether the city can contract with the society for the board of destitute children cannot be raised by demurrer—when interest begins to run on the claim.
    
    Where the complaint in an action, brought by a society for the prevention of cruelty to children against the city of New York to recover for board furnished to destitute and dependent children temporarily and permanently committed to the plaintiff’s care by magistrates in the city of New York, alleges that such board was furnished “at the request of the defendant,” the question whether, under section 14 of article 8 of the Constitution of the State of New York and under section 661 of the Greater New York charter (Laws of 1897, chap. 878), relative to payments to institutions for the support of inmates thereof, the city had authority to make a contract for the board of the destitute and dependent children mentioned in the complaint, is a matter of affirmative defense which must be pleaded and cannot be raised by a demurrer.
    The plaintiff, in the event of a recovery, is entitled to interest only from the date when payment of its claim was demanded from the comptroller.
    Appeal by the defendant, The City of New York, from that portion of an interlocutory judgment of the Supreme Court, partly in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of September, 1901, upon the decision of the court, rendered after a trial at the Richmond Special Term, overruling the defendant’s demurrer to che third and fourth causes of action set forth in the complaint.
    The third cause of action repeats the following paragraphs of the first cause of action :
    Paragraph 1. “That the plaintiff is, and at all times hereinafter stated was a domestic corporation duly organized and existing under and pursuant to chapter 130 of the Laws of 1875 of the State of New York-.”
    Paragraph 2. “ That the defendant is, and at all times hereinafter stated was a domestic municipal corporation duly organized and existing under and pursuant to chapter 378 of the Laws of 1897 of the State of New York.”
    And alleges “ That the plaintiff, at the request of the defendant, furnished to defendant board for destitute and dependent children temporarily committed to plaintiff by magistrates jn the county and borough of Richmond, from January 1, 1898, to October 1, 1899, amounting to the sum of one hundred and sixty-four 87/100 dollars ($164.87) being at the rate of two dollars per week for each child, an itemized statement of the names of said children, their ages, when committed, the committing magistrates, the days of commitment, the time remaining in the charge of the plaintiff and the number of days, with the amount due for the hoard of each child, having been, prior to the commencement of this action, duly furnished to the defendant.” And that payment of said sum was demanded and refused on the 30th day of July, 1900; and the claim was presented to the comptroller prior to the commencement of the action.
    The fourth cause of action repeats the 1st and 2d paragraphs of the first cause of action, and alleges: “That the plaintiff, at the request of the defendant, furnished to defendant hoard for destitute and dependent children permanently committed to plaintiff by magistrates in the county and borough of Richmond, from January 1, 1898 to January 1, 1899, amounting to the sum of four thousand four hundred and forty-three and 31/100 dollars ($4,443.31), being at the rate of two dollars per week for each child, an itemized statement of the names of the children, their ages, when committed, the committing magistrates, the days of commitment, the time remaining in the charge of the plaintiff, and the number of days, with the amount due for the board of each child, having been, prior to the commencement of this action, duly furnished to the defendant; * * * that thereafter, on or about the 30th day of July, 1900, payment of said sum was duly demanded of defendant, but the same was refused,” and that said claim was presented to the Comptroller more than thirty days prior to the commencement of this action.
    The defendant demurred on the ground that neither of these alleged causes of action stated facts sufficient to constitute a cause of action. The demurrer was overruled, and from the interlocutory judgment entered upon the decision of the court at Special Term the defendant has appealed.
    
      Samuel II. Ruins, for the appellant.
    
      Howard R. Bayne, for the respondent.
   Willard Bartlett, J.:

The basis of the defendant’s demurrer is the proposition that under section 14 of article 8 of the Constitution, and under section 661 of the Greater New York charter (Laws of 1897, chap. 378), the city is without power to make such a contract for the board of destitute and dependent children as it is alleged to have made in the third and fourth causes of action set out in the complaint.

The Constitution prohibits payments by counties, cities, towns or villages to charitable, eleemosynary, correctional or reformatory institutions, wholly or partly under private control, for the care, support and maintenance of any inmate who is not received and retained therein pursuant to rules established by the State Board of Charities.” The Greater New York charter provides that no payment shall be made by the city of New York to any such institution for the care, support, secular education or maintenance of any child surrendered to said institution, or committed to, received or retained therein, in accordance with other specified sections of the charter, except upon the certificate of the commissioner having administrative jurisdiction that such child has been received and is retained by such institution, pursuant to the rules and regulations established by the State Board of Charities.”

It will be observed that the portions of the complaint now under consideration set out two executed contracts, one relating to children temporarily committed to the Richmond County Society for the Prevention of Cruelty to Children, and the other to those permanently committed. It is alleged that the plaintiff has furnished board to these children at the request of the city of New York. From this allegation an undertaking or obligation to pay would ordinarily be implied, but it is argued that no such implication arises in the present case, because the Constitution and the charter forbid payments by a city to a charitable institution under private control for the maintenance of any inmates except such as are received and kept therein pursuant to the rules framed by the State Board of Charities. This means that the alleged contract was ultra vires, and we are asked to condemn the complaint because it does not contain express averments showing that the requirement in respect to the rules of the State Board of Charities has been observed; or, in other words, because it does not negative the defense of ult/ra vires by way of anticipation.

Note.— The rest of the cases of this term will be found in the next volume, 74 App. Div.— [Rep.

I think the contention of the appellant in this respect rests upon a misconception of the rule of pleading applicable in such a case. Ult/ra vires is an affirmative defense. It involves an admission that the corporation went through the form of making a contract, and an assertion that its act was ineffectual because it had no power to enter into the agreement. A defense of this character must be pleaded. (Keating v. American Brewing Company, 62 App. Div. 501.) The question cannot be raised by demurring to a complaint which simply sets out the making of the contract by the corporation and its performance by the other party.

For these reasons I think that the demurrer to the third and fourth causes of action was properly overruled, and that the city should have an opportunity, if its law officers so desire, to plead the defense of ultra vires by way of answer.

It follows that the interlocutory judgment, after a slight modification, should be affirmed. In regard to the fourth cause of action, the interlocutory judgment provides that in case the defendant does not elect to answer over, the plaintiff shall have final judgment for the sum of $4,443.31, with interest from January 1, 1899. This date should be July 1, 1900, the date on which, the complaint alleges that the payment was demanded of the defendant. Interest can be allowed only from the date of the demand. (Taylor v. Mayor, 67 N. Y. 87, 94.)

All concurred.

Interlocutory judgment modified as indicated in the opinion of' Bartlett, J., and as modified, affirmed, with costs.  