
    IN THE MATTER OF THE APPLICATION OF THE PROTESTANT Episcopal Public School, Terence Farley and others, to vacate an assessment for a sewer in 74th street, from Fifth Avenue to East River.
    A statute affecting rights and liabilities should not be so construed as to act upon those already existing. And it is the result of the decisions, that although the words of a statute are so general and broad, in their literal extent, as to comprehend existing cases, they must yet be so construed as to be applicable only to such as may thereafter arise; unless the intention to embrace all is clearly expressed.
    The construction of a sewer having been directed, by a resolution of the common council of the city of New York, proposals for the work were opened on the 6th day of April, 1865, the contract awarded to the lowest bidder, and the terms thereof agreed upon, and on the 13th of April a contract was executed between the corporation and such bidder. Intermediate the award and the execution of such contract, viz., on the 12th of April, 1865, the legislature passed an act declaring that no sewer should thereafter he constructed, in said city, except in accordance with a general plan of sewerage . to be devised by the Croton Aqueduct Board. Held that the proceedings under the resolution having been regular, and in conformity to the requirements of the city charter, they vested in the person whose bid was accepted a right of which he could not he divested without compensation, and created a liability on the part of the city to him.
    And that, so far as related to such vested rights of the bidder, the statute must be construed as prospective, and not retrospective.
    THIS was an application to vacate assessments imposed upon the property of the petitioners, for the expense of constructing a certain sewer, in the city of Hew York.
    
      The construction of the sewer was directed by a resolution of the common council; proposals for the work were opened oh the 6th of April, 1865; and a contract executed on the 13th of the same month. On the 12th of April, 1865, the legislature passed an act “in relation to sewerage and drainage in the city of Hew York,” which gave the Croton Aqueduct Board power to devise and frame a plan of sewerage and drainage of the whole of said city. (Laws of 1865, ch. 381, p. 715.) The 8th section of that act was as follows: “ It shall not be lawful, hereafter, to construct any sewer or drain in the city of Hew York, unless such sewer or drain shall be in accordance with the general plan devised by said Croton Aqueduct Board for the sewerage of the particular district in which such sewer or drain is proposed to be constructed.”
    The petitioners objected to the assessments in question, that no general plan of sewerage embracing the sewer in question had been devised by the Croton Aqueduct board, as required by said statute.
    
      Charles E. Miller, for the petitioners.
    
      D. J. Dean, for the mayor &c. of the city of New York.
   Brady, J.

The sealed bids, or proposals, for the construction of the sewer mentioned in this application, were opened on the 6th of April, 1865. The contract was executed on the 13th of April; but before it was executed, and on the 12th of April, 1865, an act in relation to sewerage and drainage in the city of Hew York was passed by the legislature, .(Laws of 1865, p. 715,) the 8th section of which declares, “ it shall not be lawful hereafter to construct any sewer or drain in the city of Hew York, unless such drain or sevrer shall be in accordance with the general plan devised by the Croton Aqueduct Board, for the sewerage of the particular district in which such sewer or drain is proposed to be constructed.”

The general plan referred to is one which, by the provisions of the act of 1865, it was necessary to devise and adopt, but which, prior to such act, was not required, to enable the Groton board to make the proper engagements to have a sewer or drain constructed. It is now contended that this act, with the prohibitory section above recited, rendered the contract nugatory, and the assessments enforced to pay the expense incurred invalid, inasmuch as the sewer was not constructed in accordance with the general plan contemplated by the act of 1865. Is this objection well taken? The answer to this inquiry, in my judgment, depends entirely upon the question whether the contractor had any vested rights, and the corporation of Hew York had incurred liabilities with reference thereto, at the time of the passage of the act referred to. The charter of 1857, by section 38, provides that all contracts to be made or let by authority of the common council shall be made by the appropriate heads of departments, under such regulations as shall be established by ordinance of the common council; that if the work shall involve an expenditure of more than two hundred and fifty dollars, the contract thereto relating must be founded on sealed bids, or proposals, to be invited by advertisement; that all bids or proposals shall be publicly opened by the officer advertising for the same, in presence of the comptroller, and the contract given to the lowest bidder complying, in making the bid, with the preliminaries prescribed.

The ordinance of the common council in reference to these provisions, declares that at the time and place appointed for that purpose in the proposals, the head of the department, in the presence of the comptroller, and such of the parties making them as may desire to be present, shall then and there publicly open and read all estimates which he may have received for the contract mentioned in such proposals, and shall reject all estimates not furnished in conformity with the rules in relation thereto, and shall thereupon award the contract as prescribed in section 38 the city charter of 1857. (See. 22, ch. 7, Revised Ordinances, 1866, p. 191.)

It is not alleged that the bidder, to whom the contract under consideration was awarded, did not in all respects conform to the requirements of the charter, and the ordinances of the common council; or that there was any irregularity,'in form or substance, in the advertisement, bid or award. It must be presumed, therefore, that on the 6th of April, 1865, when the sealed bids were opened, the award was properly and legally made, and the terms of the contract agreed upon.

These proceedings vested in the bidder a right of which he could not be divested without compensation, and created a liability on the part of the corporation to him. The bid having been accepted, the obligations disclosed were created. (Russ v. The Mayor, 12 Legal Obs. 38. Smith v. The Mayor, 10 N. Y. 504.)

Having arrived at this conclusion, the objection of the petitioners must be overruled. The act of 1865 must be construed, in reference to existing rights and liabilities, as prospective, and not as retrospective. The rule is, that a statute affecting rights and liabilities should not be so constoued as to act upon those already existing; and it is the result of the decisions, that although the words of a statute are so general and broad in their literal extent as to comprehend existing cases, they must yet be so construed as to be applicable only to such as may thereafter arise; unless the intention to embrace all is clearly expressed. (Moon v. Durden, 2 Exch. 22. Dash v. Van Kleeck, 7 John. 477. Wood v. Oakley, 11 Paige, 400. Johnson v. Burrell, 2 Hill, 238. Butler v. Palmer, 1 id. 324. Snyder v. Snyder, 3 Barb. 621. Hackley v. Sprague, 10 Wend. 114. McMannis, v. Butler, 49 Barb. 176.)

[New York Special Term,

September 5, 1870.

There is nothing in the act of 1865 which declares any such intention on the part of the legislature. It is silent upon the subject.

For these reasons the application must be denied.

Brady, Justice.]  