
    Fidelity and Deposit Company of Maryland, Respondent, v. The City of New York, Appellant.
    
      College of the City of New York — liability of the city of New York for the commissions of a real estate broker for services in procuring a new site — when the remedy is against the college.
    
    The College of the City of New York, which is a part of the educational system of the city of New York, is a domestic corporation separate and distinct from the said city of New York.
    The only obligation imposed upon the city of New York by chapter 168 of the Laws of 1895 relating to the acquisition of a new site for the College of the City of New York is “ upon application of the said board of trustees" (of the college) to “ issue bonds * * * to an amount sufficient to pay the contract price * * * and for the expense incurred in the proceedings;” and a real estate broker who, under a contract with a sub-committee of the board of trustees of the College of the City of New York, rendered service in procuring the new college site, cannot maintain an action against the city of New York to recover upon such contract, particularly where the trustees of the college not only have failed to request the city comptroller to issue bonds for the payment of the broker’s claim, but have themselves rejected such claim.
    In such a case the remedy of the broker, if any, is by an action against the College of the City of New York.
    Where a particular mode of discharging the obligations of municipal corporations is provided by law, that mode must be pursued, and-it is only when the corporation is put in default in omitting to discharge some duty imposed upon it by statute after the proper steps have been taken, that an action will lie.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of January, 1905, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.
    
      Charles A. O’Neil, for the appellant.
    
      John C. Shaw, for the respondent.
   Clarke, J.:

The plaintiff, as assignee of one Jacob D. Butler, brought this action to recover from the city of New York the sum of $6,000, with interest from August 1,1899, for services alleged to have been rendered by said Butler under a contract as broker in connection with the purchase of land for the new site of the College of the City of New York. The case was tried by the court, a jury having been waived. ..

The College of the City of New York is a domestic corporation, organized and existing by virtue of a special act of the Legislature, being chapter 264 of the Laws of 1866, recognized and continued by section 1055 of the Consolidation Act (Laws of 1882, chap. 410) and section 1127 of the Greater New York charter (Laws of 1897, chap. 378, continued by Laws;of 1901, chap. 466). Each of those acts provides that it “ shall continue tó be a separate and distinct ■organization and body corporate.” It is a'part of the educational system of the.city.. At the time of the passage of the act of 1895,. hereinafter alluded to, the members of the board of education of the city, together with the president of the college, were ex officio the trustees of the said college. (Consol.. Act, § 1056.) By section . 194 of the Consolidation Act the board of estimate and apportionment was required to annually include in its final estimate, which was thereby and: by section 214 of said act required to be annually raised and appropriated by the board of aldermen, such sum as was ■ required by the trustees in accordance with .section 1059 of said act, not exceeding $150,000 per annum, for the payment of salaries of professors and ■ officers, for obtaining' .and furnishing scientific, apparatus, books foi* the students, and all other necessary supplies therefor, and for repairing and altering the college buildings, and for the support, maintenance and general expenses of said college, and by chapter 143 of the Laws of 1882 it was made the duty of the trustees to furnish gratuitously, as therein prescribed,, the benefit of éducation' to all male students residing in the city who should pass the required examination. Chapter 168 of the' Laws of 1895, passed March, twenty-seventh, to take effect immediately, is,entitled : “An Act to authorize the procuring of new grounds and the erection thereon of buildings for the use of the College of .the City • of- New York, and to provide the means to pay for the same, and x giving authority to its trustees;”' Section 1 of said act provides: “ The board of trustees,of the College of the City of New York is hereby authorized and empowered to select and acquire, in the name and on behalf of the mayor,, aldermen and commonalty of the city of New York, a site for a new building or buildings for the uses and purposes of said college.” Section 2 thereof provides for the filing by said board of a map of the site selected. Section 3 of the statute provides: “ Upon the selection of such site and the filing of such map, 'the said board of trustees may and they are hereby authorized, in the name and on behalf of the mayor, aldermen and commonalty of the city of New York, to enter into contract with the owner or owners of said site for the purchase thereof at a price or prices to be approved by the board of estimate and apportionment of said city as the reasonable value thereof and hot exceeding in the aggregate six hundred thousand dollars. If within thirty days after such site shall be selected and such map shall be filed the said board of trustees shall not be able to agree with the owner or owners of such site for the purchase thereof as hereinbefore provided, the said board may and shall, in the name and on behalf of the mayor, aldermen and commonalty of the city of New York, proceed to acquire the title to and the ownership of the lands constituing such selected site;” such proceedings to be, or as nearly as may be; those provided by sections 2 to 7, inclusive, of chapter 191 of the Laws of 1888, entitled “An act to provide for the acquisition of sites .for school buildings by the board of education of tile city of New York.” Sections 2 and 4 of said statute of 1888 were amended by chapter 35 of the Laws of 1890. Section 4 of the act of 1895 provides: “ Upon the execution of the contract-or contracts to purchase such site, made with the owner or owners thereof as hereinbefore authorized, or on the final confirmation of the report of the commissioners of estimate appointed in the proceedings to acquire such site, and upon application of the said board of trustees, the comptroller of the city of New. York shall issue bonds in the name and on behalf of the mayor, aider-men and commonalty of the city of New York, to an amount sufficient to pay the contract price or the damages for compensation for such site, and for the expense incurred in the proceedings to acquire title to the said site, including .the fees of the commissioners of estimate and the compensation of their employes and all necessary expenses in and about the proceedings provided for by this act, and all reasonable expenses incurred by the counsel to the corporation in examining the title to said site, and in said proceedings for and on behalf of the said board of trustees and the said mayor, aldermen arid commonalty of the city of Hew York.” Section 5 of said statute provides: “ On the receipt by the comptrbller of the city of Hew York of the proceeds of the sales of the-said bonds, and within thirty days after the final, confirmation of the report of the said commissioners of estimate, or in case of voluntary purchase,- upon delivery of proper deed or deeds, the said comptroller shall pay out of said proceeds the aforesaid contract, price, damages, expenses, fees and compensation, to the respective persons to whom the same may be due.” ■ ~

Acting under said statute, the trustees selected a site and duly filed a map. On July 18, 1895', the board of trustees “ Resolved, That á sub'-committee consisting of the chairman be appointed to arrange with owners of property included within the new- site selected for the college and perfect, if possible,, the purchase of the same in compliance with the requirements of the act of the Legislature providing for the- new site.” On August 16, 1895, the executive .committee resolved that the matter of arranging with Jacob •D. Butler as to liis fees for securing thei site' in question by contract ■ or condemnation be referred'to the chairman of the executive committee and chairman of the board of trustees, with power.” On the twenty-third of August, the said two chairmen and Butler signed a paper which, after reciting the above resolution, proceeded: “ This agreement witnesseth: That the said Butler agrees with the said . executive committee and the said board of trustees that he will act as the sole representative of the said executive committee and -will use his best endeavors to secure 'for them the property embraced within the said site at private sale, and also will act as their repre^ sentative in condemnation proceedings if the same should become - necessary, for the sum of six thousand dollars, to be paid to him at the conclusion of the purchase of the above-mentioned site whether by private sale or by condemnation* * * * And the said' Robert Maclay and Alexander P. Ketéhum, on behalf of the said executive committe and said trustees of said college, agree that the said ‘six thousand ' dollars shall "be paid to the said Butler in-accordance with the terms herein set forth.” '

Butler testified that he procured the sale of all but four out of the 126 lots acquired, his work being completed about August 1, 1899. Upon the four lots subsequently acquired by condemnation proceedings, he had obtained options. No question is raised as to performance upon his part. Butler assigned his claim to the plaintiff. On June 16, 1902, the board of trustees of the college Resolved, that the claim of The Fidelity and Deposit Company of Maryland as assignee of Jacob D. Butler against the City of New York, in connection with the contract made between the board of trustees of the College of the City of New York and the said Jacob D. Butler, dated August 23, 1905, be and the same is hereby rejected.” On June 2,1903, the plaintiff presented its claim and demand in writing to the comptroller, and more than thirty days had expired without action by him thereon when this suit was commenced. (See Revised Greater N. Y. Charter [Laws of 1901, chap. 466], § 261.) Plaintiff had judgment for $6,000, with interest from August 1, 1899, amounting to $1,980, and $117.75 costs, in all $8,097.75. _ ,

At the commencement of the trial the defendant moved for the dismissal of the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action ; and at the close of the trial upon the-ground that no facts had been proven sufficient to constitute a cause of action against the defendant; and duly excepted to the denial of its motion. The motion - should have been granted, and this judgment must be reversed. The plaintiff established no cause of action against the city. His contract, if such there were, was with “ a separate and distinct organization and body corporate,” to wit, the College of the City of New York. The obligation of the city was only “upon application of the said board of trustees ” to issue bonds * * * to an amount sufficient to pay the contract price * * * and for the expense incurred in the proceedings.” Until such application had been made to and refused by the comptroller, the city could not be put in default and no action would lie. The situation is precisely analogous to the relation that the city bears to the board of education. That board is by law created a corporate body. To that board the city is required by law to make appropriations for the pay of teachers and officers, supplies and maintenance. To that board is given the power to purchase or condemn land for school sites and erect buildings, and the title to all school property so acquired shall be vested in the mayor, aldermen and commonalty * ' * ' * but

shall be under the care and control of the board of education- for the .purpose of public education.” (Consol. Act, § 1029.) The provisions just quoted have been substantially revised in section'1055 of the Greater New York charter (Laws: of 1897, chap, 378, as amd. .by Laws of 1898, chap. 652 and Laws of 1901, chap. 466)/ The relations of the board of education to the city and the necessity of suing the board for (all contracts with it, instead of the city,-has recently been exhaustively considered. and settled by the Court- of Appeals in Gunnison v. Board of Education (176 N. Y. 11), where the precise -point was raised by demurrer that plaintiff, suing for wages as a teacher, should have sued the city and not the board. The court unanimously held the demurrer bad. Judge O’Brien used this language: “ A .brief review of some of the cases in’this and other courts will show that there never was and cannot now be any doubt with respect to the liability of the board of education of ■ the city of New York to be sued upon any disputed claim or liability arising out of the exercise of its Corporate functions as the sole representative of the school system of the city.” The most-careful examination and analysis of the provisions of law relating to these, two corporations leads to' the' conclusion that-the relation of the board of eclucation. and the city to the public schools is the same as.that of the College of the City of New York and the city to the-higher education of the city’s pupils. Therefore, the same rule must be followed. ..

■ There is this further consideration. The cost of this land and the payment of the expenses incident thereto were not to come out of the general current revenues of the city, but-were to be raised in a specific way, to wit, by the issue- and sale of bonds upon the application of the trustees- of the college; Where a -particular mode of discharging the obligations of municipal corporations is .provided by law, that mode must fee ‘pursued; and it is only when the corporation is put in default in omitting to discharge some duty imposed upon it- by statute after the proper steps have been taken,, that an action will lie. (Swift v. Mayor, etc., of City of New York, 83 N. Y. 535; Dannat v. Mayor, 66 id. 588.) Here, not only does it not appear that any application was made to the comptroller, by the trustees for the payment of this, claim, but it affirmatively appears that the trustees had rejected the claim. Under such a state of facts, the city cannot be held in default.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  