
    OSWALD OTTENDORFER, et al., as Executors, &c., Appellants v. MAICHO FORTUNATO, Respondent.
    
      Municipal ordinances. Effect of a subsequent ordinance limiting the extent of an improvement authorized by a prior one upon a contract made under such prior one for the doing of the work thereby authorized—As to injunction against contractor enjoining him against prosecuting his work except to the extent authorized by the subsequent ordinance.
    
    'Where a municipal ordinance authorizes certain work and a contract is entered into between a contractor and the municipality through its proper officer in conformity with such ordinance for the doing of such work, such contract remains in full force with the liabilities of the respective parties that the law attaches thereto, notwithstanding the passage of a subsequent ordinance altering, diminishing, or limiting the extent to which the work was authorized by the first ordinance.
    Until the municipality acts on the later ordinance, and by its proper authorities forbids the contractor going on under his contract, he has the right to pursue the work in conformity therewith.
    Under such circumstances a citizen of the municipality claiming that he will be seriously injured by the prosecution of the work beyond the extent authorized by the later ordinance, cannot enjoin the contractor from proceeding with his work in conformity with his contract.
    Before Sedgwick, Ch. J., and Dugro, J.
    
      Decided March 5, 1889.
    Appeal by plaintiffs from an order dissolving a preliminary injunction and denying motion for the continuance of an injunction.
    STATEMENT OF THE CASE BY THE COURT.
    In March, 1888, the board of aldermen passed an ordinance, that 12th/ avenue, from 133d street to 135th street, be regulated and graded, the curbstones set and sidewalks flagged, etc., under the direction of the commissioner of public works. Afterwards the contract for the performance of the work was duly entered into by the defendant and the city. The defendant legally proceeded to the performance of the work, beginning at the south end. Before the work passed 134th street, the common council passed an ordinance that the “ ordinance adopted, etc., providing that 12th avenue from 133d to 135th streets be regulated and graded, etc., under the direction of the commissioner of public works, be and it hereby is amended to read as follows: That 12th avenue from 133d to 134th streets be regulated and graded, the curbstones set and sidewalks flagged a space four feet wide through the centre thereof, under the direction of the commissioner of public works.”
    The plaintiffs were owners of vacant land on 12th avenue from 134th to 135th streets and the complaint averred that this land would be damaged if the work proceeded beyond 134th street. It was averred that the damage would be caused by a deep cut through the land, being made by the improvement, into which sand, of great value, would run from the plaintiffs’ land. After the passing of the last ordinance, the plaintiffs requested the defendant to refrain from going on with the work beyond 134th street. The defendant refused to refrain as requested, and the plaintiffs brought this action for an injunction to enjoin the defendant from proceeding with the work beyond 134th street. A preliminary order of injunction was made. This was vacated upon motion and this appeal is from the order made upon that motion.
    
      John G. Shaw, attorney and of counsel for appellants, argued:—
    The common council has the sole authority to determine whether a street shall be regulated and graded and to what extent. Charter 1873, section 17, subd. 10—as amended June 13, 1873; Matter of Roberts, 25 Him 371. The fact that the commissioner of public works had entered into a contract for the regulating and grading of the street according to the terms of the first resolution, did not prevent the common council from passing another resolution rescinding the first ordinance or modifying it by limiting the work, so that only a smaller portion of the avenue should be regulated and graded. The powder to pass this ordinance is a legislative power, and it is well settled by authority that it was not competent for the municipality to tie up and embarrass the execution of their public duties, whether legislative or executive, by contract or otherwise; in other words, it was not in the power of the common council to bind its legislative capacity by any contract so as to disable itself from enacting any law that might be deemed essential for the public good. Britton v. The Mayor, 21 How. 251. A similar question was decided in the Court of Appeals in the matter of the Protestant Episcopal Church School, 46 N. Y. 178. The only question that can arise in either of the two cases above cited, is as to the responsibility of the city to the contractor for damages for breach of the contract, and as to that question it is now well settled that the city would be liable in such a case. Baird v. Mayor, 83 N. 
      
      Y. 254. There was annexed to the opposing affidavits below an opinion of the corporation council to the effect that the resolution of October, 1888, amending the ordinance so as to restrict the work to a point coincident with 134th street would not affect in any way the contract of the defendant with the department of public works or the contractor’s rights under the contract. It is apparent in view of the decision in the two cases above quoted, viz.: Britton v. Mayor, 21 How. 251, and the Prot. Episcopal Church School, 46 N. Y. 176, that this contention on behalf of the city is without foundation.
    There is no such thing as a vested right to the performance of a. contract. If there were the contractor could file a bill in a court of equity for the specific performance of the contract. The city could break its contract, but would remain liable for damages for such breach.
    
      Charles W. Dayton, attorney and of counsel for respondent, argued:—
    I. No authority was cited below to establish the position that a citizen can, in an action, restrain the performance of a public work under a contract lawfully made and carried on.
    II. The mayor, etc., are making the improvements in question. The defendant is the instrument of the municipality. If plaintiffs are being injured, they should look to the city for damages ; if they are entitled to an injunction, it should be against the power which set and keeps the defendant in motion, and as the city is not a party to the action no injunction should be granted. The moving papers do not allege fraud, bad faith, or illegal conduct, and Morgan v. City of Binghampton, 102 N. Y. 504, is applicable. The plaintiffs’ contention amounts to this: That it is in the power of the city to annul a part of a contract lawfully entered into and begun, and that the court, upon the ¿omplaint of a citizen, will enjoin one party to that contract without notice to the other. It is submitted that this position is wholly untenable.
    III. The “ Matter of the Protestant Episcopal School,” 46 N. Y. 178, cited by the plaintiffs, was an application to vacate an assessment, because proposals were advertised for prior to the passage of the act which authorized the construction of a sewer. The court held that “ An assessment for a sewer contracted for before such general plan had been devised was void.”
    It will be readily seen that this authority has no application to the case at bar. The facts are entirely different and the element of “legislative control” is wholly wanting.
   By the Court.—Sedgwick, Ch. J.

The amending ordinance did not abrogate the contract or affect its obligations. Baird v. The Mayor, 83 N. Y. 259. However, “ the city could break its contract but would remain liable for such breach.” In this case, unless the contract was broken by the city, the authority of the defendant to complete the contract was continued. The breach referred to, is such an one as would be a prohibition to the contractor from going on with the work.

The amending ordinance was not retroactive. The contract remained in full force with the liabilities of the respective parties that the law attaches to such a contract. Until the corporation acted upon the ordinance and by its proper authorities forbade the contractor going on under the contract, he had a right to pursue the work. In fact, the commissioner of public works insisted that the work was to be prosecuted. I do not see that this case is like the cáse of the Protestant Episcopal School, 46 N. Y. 179. There was involved a competent prohibition of the work, enacted by the legislature of the state, and which directed both the city and the contractor. The power of the legislature could not be foreclosed “ by any contract of a municipal corporation.” The law created at once a duty. In the present case, whether or not there was a breach of contract, in a prohibition from continuing the contract, is a matter of fact. The passing of the amending ordinance is evidence perhaps of an intention on the part of the common council, that the work should be stopped some time in the future. That intention was not carried into effect, and indeed was not shared by all of the agents of the corporation, which was a party to the contract. The contract therefore was an authority for the defendant to continue his work.

I am of opinion, that the order should be affirmed with $10 costs.

Dugro, J., concurred.  