Opinion
Argued January 20, 1879
Decided January 28, 1879
Elliot Sanford, for appellant. D.J. Dean, for respondent.
The allegations in the complaint were evidently designed to bring the case within the provisions of the act of 1871, chap. 583, § 7, and the action instituted upon the theory that the defendant would be liable to pay the plaintiff for services rendered in the employment of the commissioners referred to in that statute.
In this the plaintiff errs. The commissioners were, it is true, appointed by the mayor, but his authority to make the appointment was derived from the Legislature and not from the corporation or its charter. The duties and the power of the commissioners were conferred by statute — and were limited and specific. Under the act of 1871, chapter 583, § 7, the sum of $750,000 was to be appropriated to be expended under the direction and supervision of these commissioners in the completion of the court house, and the comptroller of the city of New York is required on the requisition of the commissioners to pay in to their credit such sum or sums as they may from time to time deem necessary for said purpose. Assuming then but not deciding that the commissioners had power to employ the plaintiff as their clerk, it is plain that he has no claim against the defendant in the present aspect of his case. If the comptroller does indeed refuse, as the plaintiff alleges, to receipt and place to the credit of the commissioners the money they desire, it will be for them to take action to compel his obedience to the statute. And if they do not avail themselves of the means afforded by law to procure money with which to discharge obligations properly incurred, the plaintiff will then have his remedy. (3 T. C. Sup. Ct. Rep., 90; People ex rel. Bagley v. Green, Comptroller, etc.; People ex rel. Purser v. Same, 3 T. C., p. 108; Maxmilian, Adm., v. The Mayor, etc., 62 N.Y., 160.)
The appellant's counsel however insists that his complaint should be liberally construed; but conceding this to be the rule, I can find nothing in the complaint at all calculated to raise even a suspicion in the defendant's mind that the action was predicated upon the provisions of the act of 1870 also referred to. It is true, as the counsel states, that an appropriation was made under the act of 1870 as well as under that of 1871. And the plaintiff alleges "that the appropriation authorized by statute to be raised and expended in the construction of said court house under the direction of said commissioners has not been exhausted," but this allegation follows the statements to which I have above referred so as to bring the case within the act of 1871. And whatever may have been the intention of the pleader the only construction of which it is fairly susceptible is that the appropriation referred to is the one which the comptroller is "to raise and place to the credit" of the commissioners. As it is possible however that the plaintiff has a cause of action which properly stated will entitle him to relief, he should be allowed to amend his complaint if he so desires.
The judgment should be affirmed, and the plaintiff have leave to amend his complaint upon payment of costs.
All concur.
Judgment accordingly.