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Schwan v. City of New York

65 A.D. 420 Court N.Y. App. Div. English

Delivered by Goodrich, P. J.:

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p. 420
John Schwan, Appellant, v. The City of New York, Respondent.

Headnote

Contract for sprinkling the streets of Arverne-by-the-Sea—illegal if made before, for work to be done after, its annexation to New York city.
A contract made on December 17,1897, by the village of Arverne-by-the-Sea, which was annexed to the city of New York by the Greater New York charter, which took effect January 1, 1898, for the sprinkling of certain streets in the village from May 1, 1898 to October 81, 1898, is illegal.
Appeal by the plaintiff, John Sohwan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 24th day of May, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term before the court without a jury.
John J. lenehan, for the appellant.
William J. Ga,rr, for the respondent.

The complaint alleged the following facts: On December 17, 1897, the village of Arverne-by-the-Sea entered into a written contract with the plaintiff, whereby he agreed to sprinkle certain streets of the village from May 1 to October 31, 1898, and also to fill up all culverts with water from his sprinkling carts, in dry weather, once every three days, and the village agreed to pay therefor $1,000. The plaintiff performed his work but has not been paid therefor, and has duly presented his claim to the comptroller of the city, who has refused to adjust or pay the same.

At the trial, plaintiff’s counsel in his opening made certain other allegations, but there was no application to amend the complaint, and the complaint was dismissed before any evidence was introduced. From the judgment entered thereon the plaintiff appeals.

The charter of Greater New York took effect January 1, 1898. The contract was for work to be performed four months thereafter.

p. 421
Such a contract clearly falls within the doctrine laid down in Hendrickson v. City of New York ( 38 App. Div. 480 ; affd., 160 N. Y. 144 ).

The judgment should be affirmed, with costs.

Bartlett, Woodward, Hirschberg and Jerks, JJ., concurred. Judgment affirmed, with costs.

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