Municipal Consultants & Publishers, Inc. v. Town of Ramapo

Majority

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In the Matter of Municipal Consultants & Publishers, Inc., Respondent, v Town of Ramapo et al., Appellants.

Submitted March 19, 1979;

decided May 1, 1979

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POINTS OF COUNSEL

Kenneth H. Resnik and Mitchell P. Schecter for appellants.

I. No valid and binding contract arose between Municipal Consultants & Publishers, Inc., and the Town of Ramapo, absent the execution of a written agreement by the Supervisor of the Town of Ramapo. (Town of Hempstead v United States Trucking Corp., 31 Misc 2d 419 ; Pratt v Hudson Riv. R. R. Co., 21 NY 305 ; Berkeley United School Dist. of Alameda County v Barnes Constr. Co., 112 F Supp 396 .) II. The lack of execution and delivery of the alleged contract bars recovery by petitioner-respondent. (Matter of Hendrickson Bros. v County of Suffolk, 58 AD2d 602 .) III. An article 78 proceeding is improper and does not lie to enforce obligations of a public contract as there is an adequate remedy at law. (Matter of Corbeau Constr. Corp. v Board of Educ., 32 AD2d 958 ; Matter of Koegan v Yunich, 51 AD2d 744 ; People ex rel. Richards v Hylan, 200 App Div 871 .) IV. The Court of Appeals is bound by the findings of fact determined in the Supreme Court.

Harold J. Van Opdorp for respondent.

I. A contract with a municipal corporation may arise from the submission of a proposal and its acceptance by a resolution. (Village of Lake George v Town of Caldwell, 3 AD2d 550 , 5 NY2d 727 ; Belmar Contr. Co. v State of New York, 233 NY 189 ; Matter of Town of Hempstead v United States Trucking Corp., 31 Misc 2d 419 ; Sanders v Pottlitzer Bros. Fruit Co., 144 NY 209 ; Pratt v Hudson Riv. R. R. Co., 21 NY 305 ; Rouse Constr. Corp. v Albany Acoustical Corp., 9 AD2d 38 ; Matter of Hendrickson Bros. v County of Suffolk, 58 AD2d 602 .) II. Subdivision 6 of section 64 of the Town Law does not require execution by the supervisor before the contract becomes obligatory. (New York Tel. Co. v Town of North Hempstead, 41 NY2d 691 ; Soundview Woods v Town of Mamaroneck, 14 Misc 2d 866 , 9 AD2d 789 ; McDonald v Mayor of N. Y., 68 NY 23 ; Matter of Town of Clay v Helsby, 45 AD2d 292 ; Knapp v Fasbender, 1 NY2d 212 ; Village of Lake George v Town of Caldwell, 3 AD2d 550 , 5 NY2d 727 ; Orelli v Ambro, 51 AD2d 85 , 41 NY2d 952 .) III. Even if it could be interpreted that the provisions of subdivision 6 of section 64 of the Town Law is a legislative fiat that a contract with a town cannot be enforceable until the supervisor executes the contract, the remedy sought is still appropriate. (Belmar Contr. Co. v State of New York, 233 NY 189 ; People ex rel. Lunney v Campbell, 72 NY 496 ; People ex rel. Vickerman v Contracting Bd., 46 Barb 254 ; People ex rel.

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Belden v Contracting Bd., 27 NY 378 ; Matter of Semper v Duffey, 227 NY 151 ; Matter of Arcangel v Holling, 258 App Div 180 , 1031, 282 NY 808 ; Bailey v Colonna, 73 Misc 2d 299 ; Matter of Town of Hempstead v United States Trucking Corp., 31 Misc 2d 419 ; Moore v Mayor of N. Y., 73 NY 238 ; Fleishman v Furgueson, 223 NY 235 .) IV. Even assuming that mandamus is not the appropriate remedy, the relief to which petitioner-respondent is or may be entitled should be considered by the court. (Matter of Lakeland Water Dist. v Onondaga County Water Auth., 24 NY2d 400 ; Dun & Bradstreet, Inc. v City of New York, 276 NY 198 ; Matter of Niagara Falls Urban Renewal Agency v O’Hara, 57 AD2d 471 ; Matter of Corbeau Constr. Corp. v Board of Educ., 32 AD2d 958 ; Matter of Rockland Bus Lines v Board of Educ., 43 Misc 2d 1060 .) V. The agreement is clearly enforceable within the Statute of Frauds. (Cohon & Co. v Russell, 23 NY2d 569 ; Argus Co. v Mayor of Albany, 55 NY 495 ; Village of Lake George v Town of Caldwell, 3 AD2d 550 , 5 NY2d 727 ; Crabtree v Elizabeth Arden Sales Corp., 305 NY 48 ; Lalonde v Modern Album & Finishing Co., 38 AD2d 960 ; Tymon v Linoki, 16 NY2d 293 ; Flax v B. M. Dev. Corp., 35 AD2d 565 ; Marshall v Ferris, 65 Misc 2d 405 ; Clifford v Carrols N. Y. Dev. Corp., 50 Misc 2d 741 ; Sokol v Terry, 43 Misc 2d 168 .) VI. The Court of Appeals is not bound by the conclusions of the Supreme Court. (Williams Press v State of New York, 37 NY2d 434 .)

OPINION OF THE COURT

The issue in this case is whether the Town of Ramapo is contractually obligated to receive and pay for the services offered by the petitioner Municipal Consultants & Publishers, Inc. (Municipal). For the reasons which follow we conclude that there existed an enforceable contract between the parties, and we therefore affirm the order of the Appellate Division.

On June 10, 1976 Municipal, at the request of the town, submitted a written proposal in the form of a contract to the Town of Ramapo offering to codify its ordinances and local laws for a sum specified in the proposal. On July 21 Municipal agreed to certain changes suggested by the town attorney, but no formal action was taken at that time on behalf of the town on the proposal. Finally, on February 9, 1977 the town board formally acted on it, and agreed to engage petitioner’s services.

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By resolution No. 77-54 the town (1) authorized the town attorney to accept the proposal; (2) authorized the supervisor to sign the agreement, and (3) provided payment for the work. The resolution adopted by the town board on February 9, 1977, in pertinent part, provided that:

"RESOLVED by the Town Board of the Town of Ramapo that authorization be hereby granted for the Town Attorney to accept the proposal submitted by Municipal Consultants & Publishers, Inc., of 64 Seneca Street, Geneva, New York, to codify Ordinances and Local Laws of the Town of Ramapo, and

"BE IT FURTHER RESOLVED that the Supervisor be hereby authorized to execute the Agreement between the Town of Ramapo and Municipal Consultants & Publishers, Inc., and

"BE IT FURTHER RESOLVED that the sum of $10,000.00 for the first 450 pages or less and $20.00 per page for each additional page in excess of 450 pages, be hereby paid to Municipal Consultants & Publishers, Inc. for services rendered.”

On February 15, 1977, the town attorney notified Municipal that the agreement had been approved, forwarded copies of the agreement for Municipal to execute, and stated he looked forward to a long and pleasant relationship.

Ramapo’s supervisor, however, never signed the contract. It appears that one of Municipal’s competitors, long after the passage of the resolution authorizing the agreement, offered to do the work for a lesser sum. The parties met in an attempt to work out their differences but to no avail. This article 78 proceeding ensued requesting that the court declare the contract valid and enforceable and also to direct the supervisor and town attorney to deliver an executed copy of the agreement.

The primary issue presented is whether the contract is enforceable against the town without the signature of the supervisor.

Generally, where the parties contemplate that a signed writing is required there is no contract until one is delivered (Scheck v Francis, 26 NY2d 466 ; Schwartz v Greenberg, 304 NY 250 ). This rule yields, however, when the parties have agreed on all contractual terms and have only to commit them to writing. When this occurs, the contract is effective at

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the time the oral agreement is made, although the contract is never reduced to writing and signed. Where all the substantial terms of a contract have been agreed on, and there is nothing left for future settlement, the fact, alone, that it was the understanding that the contract should be formally drawn up and put in writing, did not leave the transaction incomplete and without binding force, in the absence of a positive agreement that it should not be binding until so reduced to writing and formally executed (Disken v Herter, 73 App Div 453 , affd 175 NY 480 ; 1 Williston, Contracts, § 28; see, also, Matter of Meister, 39 AD2d 857 , affd 32 NY2d 626 ; Belmar Contr. Co. v State of New York, 233 NY 189 , 194). Here, of course, there was no understanding that the agreement would not be binding, short of formal execution by the supervisor; and the facts of the case before us fall within the legal framework of the last above-cited cases. All the terms of the contract had been negotiated and agreed upon. They were, in fact, expressed in Municipal’s written standard contract which had been modified in several slight respects through negotiations. There was no understanding or agreement that the contract would not be binding until both parties had signed it, and therefore it is enforceable although it was never memorialized with a mutually signed writing.

We now further address the question of whether the authorizing resolution No. 77-54 constituted an acceptance of the proposal. The resolution of the town board authorized the town attorney to accept the contract on behalf of the board and authorized, but did not specifically direct, in so many words, the supervisor to sign the agreement on behalf of the town (cf. Village of Lake George v Town of Caldwell, 3 AD2d 550 , 552, affd 5 NY2d 727 ). Because the supervisor never signed the agreement the town maintains that it never fully assented to it. This concept we reject.

Subdivision 6 of section 64 of the Town Law reposes exclusive authority in the town board to award contracts; and it further provides that "the same shall be executed by the supervisor in the name of the town after approval by the town board” (emphasis added). The section does not recognize any discretion on the part of the supervisor to pass on the award of contracts; in fact it is quite the opposite, in effect, by instructing him or directing that he act. The ministerial nature of the supervisor’s function is further emphasized by section 29 of the Town Law which delineates the powers and

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duties of the supervisor. Despite the breadth of the responsibilities outlined therein, nowhere does there appear any authority or responsibility to agree to or to have any discretionary authority in anywise relating to the execution of contracts authorized or adopted by the board.

Hence, the town board’s resolution which authorized the supervisor to sign the agreement on its behalf was an acceptance of the offer made by Municipal (Orelli v Ambro, 51 AD2d 85 , revd on other grounds 41 NY2d 952 ; Village of Lake George v Town of Caldwell, 3 AD2d 550 , affd 5 NY2d 727 , supra; Town of Hempstead v United States Trucking Corp., 31 Misc 2d 419 ). Nothing further was necessary to create an enforceable contract. The supervisor’s refusal to perform the ministerial act of signing the contract was therefore unlawful, and an article 78 proceeding in the nature of mandamus lay to compel his action (see Belmar Contr. Co. v State of New York, 233 NY 189 , supra).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur with Judge Gabrielli.

Order affirmed.

Cases cited

Town of Hempstead v. United States Trucking Corp. 31 Misc 2d 419 N.Y. Sup. Ct. 1961-09-12 p. 146, p. 147, p. 150
Pratt v. Hudson River Railroad 21 NY 305 N.Y. p. 146
Corbeau Construction Corp. v. Board of Education 32 AD2d 958 N.Y. App. Div. 1969-07-14 p. 146, p. 147
Village of Lake George v. Town of Caldwell 3 AD2d 550 N.Y. App. Div. 1957-05-08 at 552 p. 146, p. 147, p. 149, p. 150
Village of Lake George v. Town of Caldwell 5 NY2d 727 N.Y. 1958-06-25 p. 146, p. 147, p. 149, p. 150
Belmar Contracting Co. v. State 233 NY 189 N.Y. 1922-04-18 at 194 p. 146, p. 149, p. 150
Sanders v. Pottlitzer Bros. Fruit Co. 144 NY 209 N.Y. 1894-12-18 p. 146
John W. Rouse Construction Corp. v. Albany Acoustical Corp. 9 AD2d 38 N.Y. App. Div. 1959-08-13 p. 146
Soundview Woods, Inc. v. Town of Mamaroneck 14 Misc 2d 866 N.Y. Sup. Ct. 1958-09-02 p. 146
McDonald v. Mayor of New York 68 NY 23 N.Y. 1876-12-22 p. 146
Town of Clay v. Helsby 45 AD2d 292 N.Y. App. Div. 1974-07-05 p. 146
Knapp v. Fasbender 1 NY2d 212 N.Y. 1956-04-27 p. 146
Orelli v. Ambro 51 AD2d 85 N.Y. App. Div. 1976-02-09 p. 146, p. 150
People ex rel. Lunney v. Campbell 72 NY 496 N.Y. 1878-02-12 p. 146
People ex rel. Vickerman v. Contracting Board 46 Barb 254 N.Y. Sup. Ct. 1865-12-05 p. 146
People ex rel. Belden v. Contracting Board 27 NY 378 N.Y. p. 147
Semper v. Duffey 227 NY 151 N.Y. 1919-10-14 p. 147
Bailey v. Colonna 73 Misc 2d 299 N.Y. Sup. Ct. 1972-11-22 p. 147
Moore v. Mayor 73 NY 238 N.Y. 1878-04-09 p. 147
Fleischman v. Furgueson 223 NY 235 N.Y. 1918-04-02 p. 147
Lakeland Water District v. Onondaga County Water Authority 24 NY2d 400 N.Y. 1969-04-16 p. 147
Dun & Bradstreet, Inc. v. City of New York 276 NY 198 N.Y. 1937-11-23 p. 147
Niagara Falls Urban Renewal Agency v. O'Hara 57 AD2d 471 N.Y. App. Div. 1977-05-27 p. 147
Rockland Bus Lines, Inc. v. Board of Education 43 Misc 2d 1060 N.Y. Sup. Ct. 1964-08-26 p. 147
Morris Cohon & Co. v. Russell 23 NY2d 569 N.Y. 1969-01-23 p. 147
Argus Co. v. Mayor of Albany 55 NY 495 N.Y. 1874-01-20 p. 147
Crabtree v. Elizabeth Arden Sales Corp. 305 NY 48 N.Y. 1953-01-21 p. 147
Tymon v. Linoki 16 NY2d 293 N.Y. 1965-12-30 p. 147
Flax v. B. M. Development Corp. 35 AD2d 565 N.Y. App. Div. 1970-07-20 p. 147
Marshall v. Ferris 65 Misc 2d 405 N.Y. Sup. Ct. 1970-12-08 p. 147
Clifford v. Carrols New York Development Corp. 50 Misc 2d 741 N.Y. Sup. Ct. 1966-06-30 p. 147
Sokol v. Terry 43 Misc 2d 168 N.Y. Sup. Ct. 1964-04-23 p. 147
Williams Press, Inc. v. State 37 NY2d 434 N.Y. 1975-07-08 p. 147
Scheck v. Francis 26 NY2d 466 N.Y. 1970-05-27 p. 148
Schwartz v. Greenberg 304 NY 250 N.Y. 1952-07-15 p. 148
Disken v. Herter 73 App Div 453 N.Y. App. Div. 1902-06-20 p. 149
In re the Estate of Meister 39 AD2d 857 N.Y. App. Div. 1972-06-06 p. 149
In re the Estate of Meister 32 NY2d 626 N.Y. 1973-03-14 p. 149