Opinion
March, 1902.
Sheridan S. Norton for plaintiff.
George L. Rives, Corporation Counsel (John F. O'Brien, of counsel), for defendant.
The action is to recover $182, the value of certain material furnished by plaintiff for the foundation of one of defendant's greenhouses in Prospect Park, borough of Brooklyn. The defendant admits that the material was furnished in an emergency, that it has been used by the city, and that its value is the sum demanded in the complaint, but disclaims liability because under the charter of 1897, which was in effect when the alleged cause of action accrued, it was provided (sec. 419) that "No expenditure for work or supplies involving an amount for which no contract is required (less than $1,000) shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure has been duly authorized and appropriated." No such certificate is produced, nor has any appropriation for the expenditure been proved.
The plaintiff contends, however, that section 618 of the same charter is controlling in this controversy. That section refers specially to the park board, prescribes the manner in which the board shall award contracts, and provides that "In case of an emergency each commissioner may purchase articles immediately required without calling for competition at an expense not exceeding one thousand dollars during any one month." Section 419 applies generally to the city and its several departments, while section 618 refers specially to the park department, and, as between the two, if inconsistent, the special provision must control in this action.
Section 419 does not in terms refer to emergency cases, and the fact that the value of certain labor or material furnished the city is less than $1,000, does not establish that such work or material is furnished in an emergency. An emergency is "a sudden or unexpected happening, an unforeseen occurrence or condition" (Cent. Dict.), for which, therefore, it cannot be required that the preliminary steps prescribed in section 419 shall have been taken. And in this case the emergency arose because of the fact that a heavy frost would have probably destroyed defendant's plants if plaintiff had not furnished the material.
Moreover, section 617 of the charter of 1897 provides that each commissioner of parks shall on or before the 1st day of September in each year prepare an itemized estimate of his necessary expenses for the ensuing fiscal year and present the same to the board of parks; that the estimate so prepared, revised by the board, shall constitute the annual estimate of the department of parks and be submitted to the board of estimate and apportionment; that no commissioner shall incur any expense for any purpose in excess of the amount appropriated therefor, nor shall he expend any money so appropriated for any purpose other than that for which it was appropriated; and section 618 follows, part of which section provides for emergency cases, as before stated. An estimate cannot be made for something unforeseen, and there could, therefore, be no appropriation for the particular expense in question. An intention is thus apparent to distinguish emergency from other cases of municipal expenditures for the park department.
The commissioner of parks, however, did not order the material from plaintiff. It was ordered by the superintendent of parks of the borough of Brooklyn and approved by the chief engineer of the department of parks in said borough. These officials in the transaction with plaintiff performed a duty which devolved upon the commissioner; for the statute (charter of 1897, sec. 612) made the commissioner responsible for the care of the park, and such care would not have been exercised if the plants placed in his charge were allowed to be damaged by frost.
It seems to me that the technical objection that the contract was not made with the proper person should not, under the circumstances, be sustained.
In Abells v. City of Syracuse ( 7 App. Div., 501) the court, having stated "the well-known principle that a municipal corporation finds the measure of its power in the statute creating it or imposing the power" (McDonald v. Mayor, 68 N.Y. 23), said: "This principle has been invoked in many cases of local improvements in cases where fraud was apparent and collusion manifest between the corporation officers and the contractors, and when, under the guise of extra work, they have sought to avoid the publicity of advertising for work and material the courts have been careful to protect the people from such fraudulent contracts and contrivances, and hold the municipality strictly to its statutory duties and obligations; but in other cases like the one at bar, where the corporation has received a substantial benefit and retained such benefit, and the work was necessary in carrying out the contract, either as extra work or to meet exigencies which were unforeseen when the contract was entered into, the courts have been more lenient in their construction of corporate powers upon principles of equity." And in Moore v. Mayor (73 N.Y., at p. 248) the court said: "When there has been a bona fide performance of a contract, of which the city has had the benefit, there is a strong equity in favor of the contractor seeking his pay, entitling him to the benefit of a ratification even of a void contract upon slight evidence, if the ratifying body has general power over the subject of the contract, and of an estoppel when an estoppel fairly results from the conduct of the general agents of the city." (see also North River Elec. Co. v. City of New York, 48 App. Div., 14; Harlem Gas Co. v. Mayor, 33 N.Y., 309).
There must be judgment for plaintiff, with costs.
Judgment for plaintiff, with costs.