Ottendorfer v. Fortunato — 22 N.Y. St. Rep. 427

Majority

p. 427

Oswald Ottendorfer et al., Executors, App’lts, v. Maicho Fortunato, Resp’t.

(New York Superior Court, General Term,

Filed March 5, 1889)

Headnote

Municipal corporations—Public improvements—When ordinance not

RETROACTIVE.

The board of aldermen passed an ordinance that Twelfth avenue from One Hundred and Thirty-third street to One Hundred and Thirty-fifth street, in the city of New York, be regulated and graded, and entered into a contract with the defendant to do the work. Subsequently the ordinance was amended restricting the work to the block between One Hundred and Thirty-third street and One Hundred and Thirty-fourth street. After the passing of the last ordinance, the plaintiff, a property owner, requested the defendant to refrain from going beyond One Hundred and Thirty-fourth street, and upon his refusal brought this action for an injunction. Held, that the amending order is not retroactive, and does not abrogate the contract, or aifect its obligation, that until the corporation act upon the ordinance, and by its proper officers forbid the contractor from going on under the contract, he has a right to pursue the work.

Appeal by plaintiffs from an order dissolving a preliminary injunction, and denying motion for the continuance of an injunction.

John C. Shaw, for app’lts; Charles W. Dayton, for resp’t.

—In March, 1888, the board of aldermen . passed an ordinance, that Twelfth avenue from One Hundred and Thirty-third street to One Hundred and Thirty-fifth 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 One Hundred and Thirty-fourth street, the common council passed an ordinance that the “ ordinance adopted, etc., providing that ‘ Twelfth ’ avenue from One Hundred and Thirty-third to One Hundred and Thirty-fifth street, 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 Twelfth avenue, from One Hundred and Thirty-third to One Hundred and Thirty-fourth street, be regulated and graded, the curbstones set and sidewalk 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 Twelfth avenue, from One Hundred and Thirty fourth to One Hundred and Thirty-fifth street, and the complaint averred thak this land would be damaged if the work proceeded

p. 428

beyond One Hundred and Thirty-fourth street. It was averred that the damages 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 plaintiff’s lands.

After the passing of the last ordinance, the plaintiff requested the defendant to refrain from going on with the work beyond One Hundred and Thirty-fourth street. The defendant refused to refrain as requested, and the plaintiff brought this action for an injunction te enjoin the defendant from proceeding with the work beyond One Hundred and Thirty-fourth street. A preliminary order of injuction was made. This was vacated upon motion, and this appeal is from order made upon that motion.

The amending ordinance did not abrogate the contract or affect its obligation. 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'a 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 work insisted that the work was to .be prosecuted. I do not see that this case is like the Case 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 sometime in the future. That intention was not carried into effect, and indeed w7as not shared by all of the agents of the corporation which was a party to the contract. The contract thereupon was an authority for the defendant to continue his wrork.

I am of opinion that the order should be affirmed, with ten dollars costs.

Dugro, J., concurs.