
    Rose Beckrich and George L. Beckrich, as Executors, etc., of Nicholas Beckrich, Deceased, Appellants, v. City of North Tonawanda, Respondent.
    
      Acceptance of a conveyance of real property by a city — what action of the city officials is insufficient to establish it — action for specific performance.
    
    The common council of the city of North Tonawanda adopted a resolution authorizing its clerk to advertise for proposals for a market site. After the advertisement had been published, the common council passed a resolution accepting a proposition for the sale of a proposed site and this resolution was approved by the mayor. Subsequently the common council passed a resolution directing that an order in favor of the owner of the property be drawn on the treasury for the purchase price thereof, the order to remain in the hands of the mayor until the property should be conveyed to the city. The order was drawn and signed by the clerk, but it was never signed or indorsed by the mayor and was never delivered to the owner óf the property. Thereafter a resolution of the common council was passed directing the city engineer to establish the grade of streets about the proposed market site and to make plans for necessary sewers and for grading the market site up to the proper street level.
    The city engineer thereupon surveyed the property, set monuments on street corners and made plans for a sewer and a profile of proposed grades about the site, but no streets were ever opened or any grading done or work performed upon, or with reference to, the property.
    Subsequently the common council passed a resolution directing that the conveyance of the property be accepted and that the city clerk cause the same to be recorded. Before the mayor hnd'acted on this resolution, the clerk took the deed to the treasurer and had it registered and delivered it to the county clerk for record. A few days later the mayor vetoed the resolution accepting the conveyance, and no effort was made to overrule the veto. The assessors’ map was changed, and no assessment of the property in question was made, and the common council audited the charge of the county clerk for recording the deed.
    The charter of the city (Laws of 1897, chap. 361) gave the common council power to purchase a market site', but it also gave the mayor the power tó veto any resolution passed by the common council, which veto could only be overruled by a two-thirds vote of the members of the common council.
    In an action brought to recover the purchase price of the property, based upon an allegation of the delivery to the city and of its acceptance of á conveyance of the property, it was
    
      Held, that the court properly directed a verdict for the defendant on the ground that no valid acceptance of the conveyance had been shown.
    McLennan and Spring, JJ., dissented upon the ground that the question of acceptance was one of fact.
    
      Qucere, whether an action would lie for the specific performance of a contract to purchase the property.
    Appeal by the plaintiffs, Rose Beckrich and another, as executors, etc, of Nicholas Beckrich, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of Niagara on the 19th day of July, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 30th day of July, 1900, denying the plaintiffs’ motion for anew trial made upon the minutes.
    
      Lewis T. Payne and P. F. Kwig, for the appellants. .
    
      A. F. Premus, for the respondent.
   Williams, J.:

The action was brought to recover the purchase price of' real property, alleged to have been purchased by, and conveyed to, the city, respondent, for a market site. The action was based upon an allegation of delivery of a conveyance of the property to, and an acceptance thereof by the city. There were no allegations in the complaint appropriate to an action for specific performance of an alleged contract to purchase, or even to a recovery upon the theory of a contract, and a tender of performance by the vendor, and a refusal to accept by the city. It was necessary, in order to recover under the pleadings, that it should he found that the city accepted delivery of the conveyance. The trial court directed a verdict solely upon the ground that no valid acceptance, had been shown There was a constitutional question raised as to the power of the city to make the purchase and incur the indebtedness for the purchase price of the property, but the decision was not put upon that ground, and inasmuch as there were matters of fact to be considered in connection with that question, we think the question should be passed upon by a trial court and a jury before it is considered by this court. The only question here is whether the direction of a verdict- should be upheld, on the ground it was put by the trial court, failure to prove acceptance of the conveyance by the city.

The respondent city was incorporated by chapter 361 of the Laws of 1897, which became a law April twenty-fourth of that year. By section 3, title 7 of that act, the common council was given the power to purchase market grounds, and establish and regulate public markets. This power was, however, subject to the power given to the mayor by section 5, title 6 of the act, to veto any resolution passed by the common council, and this veto could only be overruled by a two-thirds vote of the members of the common council. So that the power to purchase and accept a conveyance of real property for a market could not be exercised by any officer, agent or employee of the city, nor could any such officer, agent or employee accept a conveyance of such property for the city unless expressly authorized to do so by the common council, with the consent of the mayor, and it would seem that such authority could only be given by resolution of the common council in order that its action might be subjected to the veto power of the mayor, provided for by the charter. Under these provisions of the charter the undisputed facts show a non-acceptance of the conveyance of the property in question by the city.

October 5, 1897, at a meeting of the common council, a resolution was adopted authorizing the clerk to advertise ' for proposals for a market site, and pursuant to such resolution such notice was published October 7 and 11, 1897. October 19, 1897, at a meeting of the common council, a written proposition by plaintiffs’ testator to sell the property in question was made, and thereupon a resolution was passed that the proposition he accepted, and this resolution was approved hy the mayor.

- November 3, 1897, at a meeting of the common council, a resolution was passed directing that an order be drawn on the treasurer for the purchase price of the property in favor of the plaintiffs’ testator, the order to be placed in the hands of the mayor until the property be conveyed tb the city by warranty deed, with abstract of title to be approved by the proper officer.

November i, 1897, such order was drawn and signed by the clerk, but it never was signed or indorsed by the mayor, and was never at • any time delivered to plaintiffs’ testator.

November 9, 1897, at a meeting of the common council, a resolution was passed directing the city engineer to establish the grade of streets about the proposed market site, and to'make plans for necessary sewers and for grading the market site up to the proper street level. Thereafter, and in the fall of 1897, the city engineer, pursuant to the -resolution, surveyed the property, set monuments on street corners, and made plans for a sewer and profile of proposed grades about this proposed site'. No streets were ever opened or grading done, or work performed upon or with reference to the proposed site. The matter lay along until March 15, 1898, when, at a meeting of the common council, a communication was presented, signed by the attorney 'for the plaintiffs’ testator, stating that the deed had been delivered and the ‘title had been approved by the city attorney and demanding the order for the purchase money in the hands of the mayor. . No action was taken by the common council at that time with reference to the communication.

March 30, 1898, at a meeting of the common council, a resolution was passed that the conveyance be accepted; that the city clerk cause the samé to be recorded.' The personnel of the city government changed about this time; the city clerk was changed about April 5, 1898, and he was urged to put the conveyance on record, ■ before he left the office. The mayor, however, had not acted upon . the resolution, and his time to do so had not expired. The clerk, without calling the mayor’s attention to the resolution, took the deed to the treasurer and had it registered and delivered it to the county clerk for record. The conveyance having passed the treasurer’s office, the change was made on the • assessors’ map in accordance therewith by the city engineer. April 8, 1898, the mayor vetoed the resolution of March 30, 1898, and the veto was presented to the common council at a meeting thereof held April 21, 1898. No effort was ever made to overrule the veto, and the resolution, therefore, was inoperative, the same as though néver passed by the common council.

At the same meeting the account of the county clerk for recording the conveyance, ninety cents, was audited and ordered paid. The conveyance appears to have been acknowledged November 2, 1897, but the plaintiff’s intestate having died October 9, 1898, his executrix by attorney presented a communication to the common council, at a meeting thereof held April 19, 1899, in which it was stated that the conveyance was delivered to the city about April 1, 1898; demand was made for the purchase price, and legal proceedings were threatened. The assessors by reason of the change in their map did not assess the property during the years 1898 and 1899. The city has never taken possession of the property or done any work or made any improvements thereon. No complaint is made as to the form of the conveyance or the title to the property. The action was begun November 1, 1899.

These are the undisputed facts upon which the trial court acted in directing the verdict. We think the direction was properly made. There was no acceptance of the conveyance by or under the direction or authority of the common council, with the approval of the mayor. If this action was based upon an alleged contract of purchase, and specific performance were demanded, the proceedings of the common council, with the approval of the mayor, in the fall of 1897, would be entitled to serious consideration, as showing the making of a contract, but it cannot be claimed that any evidence is found in such proceedings of an acceptance of the conveyance by the common council itself, or authority in any one else to so accept. By the resolution of October nineteenth the proposal of plaintiffs’ testator was accepted. By the resolution of November third the ■order was directed to be drawn and left with the mayor until the conveyance was given and title approved. No direction was given to accept the conveyance or deliver the order. That was left for future action. November ninth the city engineer was directed to do certain work, in anticipation of the proposed purchase, and he did the work, but the property was in no way interfered with; no-street opened, no grading done. It was all merely- surveying, preparing plans and getting ready to do some work; make some improvements when title was actually taken of the property. Nothing further was done until the middle of March, 1898, when an effort was made to have the purchase completed, title taken and the purchase price paid. The common council took no action until March 30, 1898, when they passed a resolution accepting the deed and directing the record.' This was sufficient, if effectual, to close up the purchase and give the right of action here brought. This resolution was, however, duly vetoed, and this action of the common council came to naught. All the acts of the city clerk, the city treasurer and the city engineer, with reference to the conveyance, its acceptance, registry by the treasurer, changing assessors’ map, recording, were entirely unauthorized and amounted to nothing. These officers could not bind the city by doing what they did, and an acceptance by the city of a delivery of the conveyance could not be found or inferred from any such acts. The auditing and paying for the record of the conveyance could have no effect in ratifying the acts of the officials. The auditing of the item of ninety cents was in a batch of other accounts; the audit was at the same meeting as the presentation of the mayor’s veto. The council could not have intended any such ratification. They may well have considered it a proper thing to do, to pay the county clerk so that he should not suffer even for the unauthorized act of the city clerk in directing the record. In any event, whatever the intention of the common council was, they could not in this indirect way override the veto-of -the mayor and render it nugatory.

We are unable, in any view of the case, to see that there was any question for the jury as to á legal acceptance of the conveyance by the city. The trial court properly directed a verdict for defendant.

The judgment and order appealed from should be affirmed, with costs.

Adams, P. J., and Latjghlin, J., concurred; McLennan and Spring, JJ., dissented upon the ground that the question of acceptance of the deed was one of fact for the jury.

Judgment and order affirmed, with costs.  