
    Thomas P. Hunt, Respondent, v. The City of New York, Appellant.
    
      'Contract — insufficient advertisement for proposals cannot be proved under a general denial — disposition of excise moneys in Long Island City.
    
    Where the complaint in an action against the city of New York upon a contract made with Long Island City, which is now merged in the city of New York, alleges, although unnecessarily, that proposals -were duly advertised for, evidence that the advertisement was not published a sufficient number of times or at a sufficiently early date is inadmissible under a general denial contained in the answer — the rule being that where a contract is valid on its face, its illegality on account of extraneous facts must be specially pleaded.
    
      It seems, that under the general denial proof that no advertisement had been made for proposals would have been competent.
    Under section 15 of the Excise-Law (Laws of 1892, chap. 401), providing that the excise moneys paid to a town or city “shall be applied to the payment of the ordinary expenditures payable from the general fund of the city or town respectively, unless otherwise provided by a special or local law”—which provision was continued in force by section 13 of the Liquor Tax Law (Laws •of 1896, chap. 112) — the common council of Long Island City which, by section 12 of chapter 1 of title 3 of its charter (Laws of 1871, chap. 4G1), had the general management and control of the finances and property of the corporation, had power to charge a contract for a public improvement upon the liquor tax moneys paid to the city during the then current year in order to-make good a deficiency in,the fund upon which the contract would ordinarily be chargeable, arising from the inability of the city to collect the taxes imposed. by it.
    Such liquor tax moneys were not transferred to the sinking fund of the city by the section of the charter referred to, as amended by chapter 548 of the Laws, of 1889, as the current receipts of the liquor tax moneys for any one year could. not be considered unappropriated until the end of that year. •
    Appeal by the defendant, The City of New York, from a judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 23d day of January, 1899, 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 6th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      William J. Carr, for the appellant.
    
      George W. Stephens, for the respondent.
   Per Curiam :

This action was brought to recover on a contract made between? the plaintiff and Long Island City (now merged into the city of Hew York), for repairing a bridge across Dutch Kills creek in said city. The complaint alleged the advertisement for jiroposals for said work,, .the execution of the contract by the city and its performance by the-plaintiff. The answer, after the admission of the incorporation of Long Island City and its subsequent merger into the present defendant, contained substantially a general denial of. the allegations of the complaint, and as an affirmative defense set up the provisions-of the charter of Long Island City (§ 16, chap. 1, tit. 3, chap. 461,. Laws of 1871), by which it was enacted that it should not be lawful for the common council to incur liability for the payment of any money, or .direct any work for the payment of which the city might-become liable, beyond the amount of cash applicable for the particular purpose then in the treasury of the city, and which provided, that all contracts made contrary to this direction should be void. It then alleged that there were, at the time, no cash funds or balance in the account to which this contract was chargeable. On the trial the plaintiff proved the execution of the contract and its performance. Evidence was given from the city books of accounts, and by experts who had examined them, as to the state of the balance or condition of the special city accounts. The defendant offered evidence to prove that the notice of proposals for the work was not. published a sufficient number of days or times. This evidence was. excluded, on the ground that such defect was not pleaded, and at. the conclusion of the evidence the court directed a verdict for the plaintiff, and from the judgment entered upon that verdict this appeal is taken.

We think the evidence as to the defect in the publication of the notice was properly excluded. The general rule is that where a contract is valid on its face, its illegality on account of extraneous facts must be specially pleaded. (Brennan v. The Mayor, 62 N. Y. 365; Milbank v. Jones, 127 id. 370.) The appellant concedes the correctness of this rule, but. contends that because the plaintiff alleged in his complaint, though unnecessarily, that proposals were duly advertised for] the general denial in the answer-put that allegation in issue and permitted the defendant to prove a. failure to advertise, to the same extent as if it had been set up as an affirmative defense. There is some strength in this claim, and to-a certain extent its fairness and propriety may be conceded. If, under these pleadings, the defendant had sought to prove that advertisements for proposals had not been made at all, it may be that evidence of such fact should have been allowed, or the defendant permitted to amend its pleadings. But the evidence offered was not of this character; it was simply to show that the request for proposals was not advertised a sufficient number of times, or at. •a sufficiently early date. These defects, we think, the defendant should have specially charged in its answer, in order that the plaintiff might not be taken by surprise on the trial. If the' rule of pleading should be relaxed at all in defendant’s favor, on account of the allegations in the complaint, that relaxation should not be carried so far as to permit it to show these irregularities in the advertisement without specially setting them up in the answer.

From the books and the testimony of the experts it appears that the account of “ Road and Street Fund of the First and Second Wards,” to which the cost of this work sued for would be chargeable, was on its face, at the time the contract was let, exhausted. The reason for this was that the taxpayers, tó a large extent, had made default in the payment. of taxes, and the city treasurer had credited to each city account, not the full amount provided for in the tax budget, but the pro rata share of that account in the taxes actually paid. The respondent insists that the account should be credited with the full amount allowed for it in the tax budget, because by law it .was made the duty of the city treasurer, on the first of July, to certify to the common council the amount of unpaid taxes, and then it was incumbent on the mayor and common council to issue bonds to -make up the arrearage, though in fact such bonds were not issued nor the arrearage made good. It is not necessary to determine this question, for in our opinion the account was made good in another way. When the common council directed the execution of the contract for this work it, by resolution, authorized its payment out of the liquor tax moneys then paid to the city during the year. By section 13 of the Liquor Tax Law (Chap. 112, Laws of 1896) it is provided that the revenues accruing from liquor tax certificates to any town' or city shall be appropriated and expended by such town or city “in such manner as is now or may hereafter be provided by law for the appropriation and expenditure of sums received for excise licenses, or in such other manner as may hereafter be provided by law.” We can find no special direction of law for the application of these excise moneys, and we have been referred to none except the Excise Law of 1892 (Chap. 401), on which the plaintiff relies. • It is true that the act cited was repealed by the Liquor Tax Law. Nevertheless, its provisions for the expenditure of excise moneys were in force at the time of the enactment of the law of- 1896 and are continued in force by the section cited. The law of 1892 provided (§ 15) that'“ Such moneys shall be applied to the payment of the ordinary expenditures payable from the- general fund of'the city or town respectively, unless otherwise provided by a special or local law.’’ The charter of Long Island City (Chap. 461, Laws of 1871), by section 12 of chapter 1 of title III, confers on the common council the general management and control of the finances, and all property, real and personal, belonging to the corporation. There are various restrictions placed on the power of the common council' by other provisions of the charter, but in the absence of any special direction as to tile application of the excise fund, we think the common council had the right to apply that fund in any manner not inconsistent with the charter provisions. Therefore, the transfer of the liquor tax money to make good a deficiency , in a city fund created, not by expenditures in excess of the amount of such fund, but only by the failure to collect the taxes, was valid.

The claim of the appellant is that the liquor tax moneys had already been transferred to the sinking fund by the city treasurer. The authority for this is based on the section of the charter already cited, as amended by chapter 548 of the Laws of 1889. But if we are right in our views that the liquor tax money was subject to the control of the common council, the current receipts of such money for any one year could not be considered by law unappropriated until the end of that year.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs. 
      
       This opinion was written by Mr. Justice Cullen before his designation as am associate judge of the Court of Appeals, and is adopted by this court. The= decision of the court was rendered after such designation was made.
     