
    Daniel B. Taylor, plaintiff and respondent, vs. George W. Beebe et al. defendants and appellants.
    1. In making contracts by the corporation of New York, prescribed forms must be observed by the functionaries who make them on their behalf. Hence, contracts for work, or supplies, must be founded on sealed proposals, made in compliance with previous notice, and properly published, and must be given to the lowest bidder. The contracts of such corporation which fail to pursue these designated forms are void.
    2. This doctrine is applicable to, and controls, the duty of the corporation to make leases of its public property by public auction. Ml leases must be made in the mode designated by law; and if the corporation attempts to exercise a power not conferred by law, or to act in disregard of restrictions imposed upon it, its acts are void.
    3. Whether the power of the corporation to lease its wharves to individuals is exercised by it as an aggregate municipal body, or through the means of some delegated agent, its obligation to follow all forhas designated by law and statutory provisions is equally incumbent.
    4. Where a public wharf, leased by the comptroller, is not let by public auction, as required by law, the lessee acquires no right, under the lease, to collect the wharfage.
    5. Such a case is not aided by those revised city ordinances of the corporation (art. 4, % 27 and 28,) which merely authorize the comptroller, in conjunction with the commissioners of the sinking fund, to lease the corporate property whenever in their judgment it may be advisable to do so, but also require those officers to conform such leasing to the provisions of the city charter.
    
    6. A lease of a wharf is merely a letting of the franchise of wharfage. No property in', or right to, the wharf itself passes to the lessee. There cannot, therefore, be a possessio pedis, as in the case of real property.
    7. In an action by one claiming to be the lessee of a wharf, to recover wharfage, the burthen of proof is on the plaintiff. Unless he shows a proper lease of the wharf to him, he fails to establish any right to collect wharfage of the defendants.
    (Before Barbour, Monell, and Garvin, JJ.)
    Heard March 13, 1865;
    decided May 27, 1865.
    The action was to recover wharfage. The complaint alleged that on or about the 16th September, 1863, the plaintiff was the lessee of the bulkhead in the East river, at the foot of 49th street; that for fifty-eight days, commencing with said 16th September, the defendants- deposited and left remaining, on said bulkhead, a quantity of goods, wares and merchandise, exceeding, one hundred and fifty tons in weight. The plaintiff claimed compensation for such use of the bulkhead, by the defendants, under the act entitled “ An act in relation to the rates of wharfage, aryl to regulate piers, wharves, bulkheads and slips, in the cities of Hew York and Brooklyn,” passed April 10, 1860. The answer was a general denial. Upon the trial the plaintiff proved a parol letting to himself by the comptroller of the city of Hew York, of the bulkhead or wharf in question for a period less than one year. There was no proof that the letting was by auction in pursuance of public . notice, nor was there any written lease. The defendants discharged lumber from vessels upon the wharf, where it remained for sixty days.
    The plaintiff testified that he asked Mr. Beebe, one of the defendants, several times in the month, to tell him when he was going to move the lumber, telling him that perhaps there would be more of a bill than he would be willing to pay. He (Beebe) said he Would be perfectly willing to pay what the law allowed, but that he (the plaintiff) must not charge more.
    The defendants moved to dismiss the complaint, on the ground that no authority had been shown on the part of the comptroller to make the lease. The motion was denied, and the defendants excepted. The case was submitted to the jury, who found a verdict for the plaintiff.
    The defendants appealed from the judgment.
    
      A. C. Morris, for the appellants.
    I. The hiring to the plaintiff, even had- it been in the form of a written lease, duly executed by the corporation, would have been void, as being made in violation of the provision of the - city charter, requiring all leases to be made by public auction. (Brady v. Mayor, 2 Bosw. 173; affd. 20 N. Y. Rep. 312. Aplleby v. Mayor, 15 How. 428. People v. Stout, 4 Abb. 23.)
    In the case of People v. Wood, (4 Park. Cr. R. 144,) it was held that the mayor, &c. might be indicted for giving a lease without, having complied with the provisions of the charter just referred to.
    II. But' the question, here is not respecting the powers of the corporation, but of the comptroller. The only authority the comptroller has in the matter is derived from the ordinances read on the trial, and an ordinaftee to be found at page 291 of Valentine’s Ordinances. Section 27 authorizes the comptroller to let property for a term not exceeding one year, “ as provided in the next succeeding section.” Section 28 provides how leases shall be made, to wit, “ by conforming in such leasing to the provisions of the act entitled ‘An act to further amend the charter of the city of New Yorle, passed April 14,. 1857.’” The ordinance (Val. Ords. p.-291,) confines the powers of the comptroller to leases of not less than one nor more than ten years. They are to be made at public auction to the highest bidder, as provided by the amended charter of. 1857.
    III. The defendants showed affirmatively, by the ordinances read by them, that the comptroller had no power to make the lease in question. This was unnecessary, as the burthen of proof to show the comptroller’s authority was upon the plaintiff. The court will not take judicial notice of powers conferred upon the comptroller by ordinance.
    IY. The defendants are liable to the corporation for the use of the dock, and a payment to the plaintiff would be no protection to them.
    D. B. Taylor, respondent, in person.
    I. The comptroller of the city of New York, is the proper officer to give leases in such cases, and he having leased the bulkhead to the plaintiff, his acts are presumptively lawful. The plaintiff was, therefore, until the contrary appeared, the lawful lessee in possession of the bulkhead, and entitled to the use and profits thereof.
    II. The defendants, not the plaintiff, were bound to show cause, if any there was, why the lease of the plaintiff was not valid ; the plaintiff proved all the law required him to prove, to recover in the action ; he proved his whole complaint. The motion to dismiss the complaint was therefore properly overruled in any view which may be taken of the case.
    III. The fact that the comptroller had no right to lease the bulkhead to the plaintiff, and that such lease was void, was new matter, and cannot be set up under the present pleadings. The motion to dismiss was therefore properly overruled on that ground. The only pleading on the part of the defendant was a general denial.
    (1.) The answer must allege all those facts which, when the case of the plaintiff is admitted or proved, the defendant must prove in order to defeat a recovery. Here nothing is set up. (Sec. 149 of the Code, sub. 2. (Catlin v. Gunter, 1 Duer, 253, Ayrault v. Chamberlain, 33 Barb. 237. Carter v. Koezley, 14 Abb. 147. McKyring v. Bull, 16 N. Y. Rep. 297. Dillaye v. Parks, 31 Barb. 132. Haight v. Badgeley, 15 Barb. 502. Laraway v. Perkins, 10 N. Y. Rep. 371. Pier v. Finch, 29 Barb. 170. Graham v. Harrower, 18 Howe, 144.)
    (2.) The defendant cannot give in evidence a defense of new matter not set up in his answer. The only effect of a general or specific denial in an answer is to cast the burden of proof on the plaintiff; when that proof is given, if the answer contains nothing more than such a denial, the plaintiff is at once, and, as a matter of course, entitled to a verdict and judgment. (Texier v. Gowen, 5 Duer, 392.)
    (3.) The rule is as above, even though the fact appears from the plaintiff’s evidence. In such case it cannot be set up, unless pleaded on the ground that facts found, but not pleaded, are not available to the party proving them. (Brazill v. Isham, 12 N. Y. Rep. 16. Kelsey v. Western, 2 Comst. 506. Field v. Mayor, &c. 2 Seld. 179.)
    ' IV. The fact that the comptroller did not lease the bulkhead to the plaintiff at auction, even if properly pleaded and proved, could not defeat the action.
    (1.) Because such proof is no defense in an action between the plaintiff and a person using said bulkhead. The defendants are bound to pay some one for such use. The plaintiff has the lease, .and on payment for the use, to him, the city would be estopped from collecting the rent or use over again.
    (2.). The comptroller, had, by the ordinances of the city, the right to let said bulkhead.
    (3.) The comptroller is the proper officer to let such property, being the custodian of all the city property, and his acts as between third parties, are binding, and presumed lawful.
    (4.) The letting was lawful, for in a,ny event, part of a year, as it is presumed till the contrary is fully proved, that the comptroller had done all the charter required him to do, and properly advertised, and tried to lease the bulkhead, as provided under the charter, and having failed in doing so, 'let the same under the ordinance. (Revised Ordinances, § 27, art. 4, chap. 9.)
    V. The defendant having been requested to remove the lumber, and not doing so, but agreeing to pay what the statute allowed, the plaintiff in such case is estopped from now setting up that the plaintiff was not the lessee of the bulkhead. (Ingraham v. Baldwin, 9 N. Y. Rep. 46.)
   By the Court, Monell, J.

The 41st section of the charter of the city of New York, (Charter of 1857,) requires that all leases of the public property shall be made by public auction, and to the highest bidder who shall give adequate security. Neither the duty nor the power of granting leases of the corporate property, is conferred upon any department of the city government. Such duty and power is vested in the corporation alone, and can be exercised in such manner only as the common council may direct. Such direction cannot, however, violate any provision of law.

In respect to contraéis made with the corporation, the law is well settled, that all prescribed forms must be observed by the public functionaries. Hence, contracts for work or supplies must be founded on sealed proposals, made in compliance with public notice, and must be given to the lowest bidder. ([Charter 1857, § 38.) If, therefore, the corporation omits to observe those designated forms, its contracts are void. (Brady v. The Mayor, &c. of New York, 20 N. Y. Rep. 312. Bonesteel v. The Same, 22 id. 168. McSpedon v. The Same, 7 Bosw. 601.) These cases apply in principle, and are controlling in respect to the duty of the corporation to make leases of the public property by public auction. The law contains no exceptions. All leases must be made in the designated mode ; and if the corporation assume to exercise a power not conferred by law, or to act in opposition to restrictions imposed upon it, its acts are void.

The power of the corporation to lease its wharves to individuals, is beyond dispute ; and it is not necessary to question its right to delegate such power to the comptroller or to any other officer of the city government. But whether the power is exercised by the corporation, as an aggregate municipal body, or by some delegated agent, the duty is no less incumbent, of following all designated forms and provisions of law. The wharf at the foot of Forty-ninth street belongs to the city of New York, and the plaintiff -claims to recover wharfage as the lessee of the corporation. To authorize a recovery it was necessary for the plaintiff to establish in himself a legal right to the wharfage. The letting by the comptroller was not made by public auction as required by law; and it seems to me that the plaintiff acquired no more right under it, to collect wharfage, than if the letting had been by the street commissioner, or by any other unauthorized city official. Nor is the case aided by the sections of the revised ordinances which were read in evidence at the trial. (§§ 27 and 28 of art. 4, chap. 9 of Rev. Ord.) These sections merely authorize the comptroller, in conjunction with the’ commissioners of the sinking fund, to lease the corporate property, whenever in their-judgment it may be advisable to do so. But the same sections require those officers to conform such leasing to the provisions of the city charter, before referred to.

A lease of a wharf is merely a letting of the franchise of a wharfage. No property in, or right to, the wharf itself, passes to the lessee. There cannot, therefore, be a possessio pedis, as in the case of real property. By law, the public has the right to use any wharf or pier upon a public highway, subject to the legal charges for wharfage; and such right or easement in the public constitutes the only possession there can be of the wharf itself; the possession of the owner being of the franchise merely.

There was no evidence in the case tending to show any possession of the franchise in the plaintiff. He had not collected wharfage, which was the only possession he could have. Nor was there any evidence of any relation existing between the plaintiff and defendants from which a quasi tenancy could be implied. The conversation testified to by the plaintiff, be-between himself and one of the defendants, disclosed no assertion that the plaintiff was the lessee, nor an intimation, even, that he was entitled to collect the wharfage. To the defendants’ comprehension, the plaintiff might have been a mere agent of the corporation. There is nothing, therefore, in the case, upon which we could apply the principle, that a tenant cannot dispute the title of his landlord.

The plaintiff’s right to a recovery, rested solely, in my . opinion, upon the strength of his title to the franchise of wharfage. The letting by the comptroller was not by public auction, and was therefore void. Hence, the .plaintiff failed to establish any right whatever to collect wharfage of the defendants. The burden of proof was on the plaintiff. There being no contract between the parties, it was incumbent on the plaintiff to show, in the first instance, not the defendants’ liability, but his ownership of the franchise, and his right to its emoluments. Failing to show this, the learned justice erred, I think, in denying the motion to dismiss the complaint.

If the views I have expressed are sound, they necessarily lead to a reversal of the judgment. In that case, of course, a new trial should be ordered, with costs to the appellants, to abide the event of the suit.  