Leonard v. Long Island City — 47 N.Y. St. Rep. 761

Majority

p. 761

Charles L. Leonard et al., Resp’ts, v. Long Island City, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

1. Municipal corporations—Chapter 332, Laws op 1890—Construction.

Chapter 232, of Laws of 1890, authorizes the fire commissioners of Long Island City to purchase fire engines, hose, implements and apparatus of any and all kinds for the use of the department. In an action to recover from the city the value of hose carts purchased under said law, Held, that hose carts came within the meaning of the statute.

3. Same—Want of funds no defense.

The fact that no fund was provided for the payment of the articles which the commissioners were authorized to purchase does not affect the seller’s right of action to recover the purchase price.

4$. Same—Acceptance op articles purchased.

The articles so purchased having been accepted and used bv the city, it became liable therefor upon a quantum meruit, no limitation on the power of the commissioners to purchase the same having been placed by the statute.

4. Same—Construction.

•It was not the intention of the legislature to include within the limit of annual expenses, which they fixed at $14,000, the cost of purchasing the engines and other apparatus.

Appeal by defendant from an order and an interlocutory judgment entered thereon, overruling a demurrer to the complaint.

S. B. Noble, for app’lt; Geo. L. Carlisle, for resp’ts.

—This is an appeal from an order and an interlocutory judgment entered thereon overruling a demurrer to the complaint in this action.

The complaint is for goods sold and delivered, and alleges in substance that under and in pursuance of the authority of chap. 232 of the Laws of 1890, the board of fire commissioners of Long ‘Island city, acting in behalf of that city as its duly authorized .agent and with power to bind it, purchased and received three hose carriages and other merchandise, for which the board promised to pay $2,107.25, and that they have been accepted by and are in use by said board and the defendant.

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against it.

The demurrer was overruled, as we have seen, and the defendant has appealed.

The property described in the complaint was purchased by the board of fire commissioners of Long Island city under the pro

p. 762

visions of chap. 232 of the Laws of 1890, and this action is prosecuted under that law.

By § 3 of that act the board of fire commissioners were directed to “ contract for, purchase and procure at least three steam fire engines for the use of said fire department, together with the necessary horses, hose, supplies, tools, implements and apparatus necessary and proper to be used in extinguishing fires,” and they were thereby “ authorized and empowered to purchase and provide at least three steam fire engines with the supplies, horses, tools, hose, implements and apparatus of any and all kinds for use of said department.”

The section thus clothes the board of commissioners with full and ample power to purchase the articles described in the complaint, for they all fall easily within the term implements and apparatus for use of said department.

The fact that no fund is provided for the payment of the articles, which the commissioners were authorized to purchase is not. material to the cause of action.

There is, moreover, another principle which imposes liability upon this defendant for the property furnished.

The tenth allegation of the complaint is, “ That all of said merchandise mentioned above and so purchased and received were-supplies, tools, implements and apparatus necessary and proper to. be used in extinguishing fires, and have been accepted by and are in use by said board and this defendant, as plaintiffs are informed. and verily believe.”

The facts so charged being admitted render the defendant liable upon a quantum meruit.

The statute contains no limitation of the powers of the board to make contracts for implements and apparatus for the use of the fire department. The power to make the contract for such articles existed and the city has had the benefit of the articles and is liable for their value. Kramrath v. City of Albany, 127 N. Y., 581 ; 40 St. Rep., 241 .

It does not seem reasonable to attribute to the legislature the-design to include within the annual estimate of expenses required by § 4 of the act, and which was not to exceed $14,000 in any one year, the cost of the engines and other apparatus, because the purchase price would exceed that sum and it could not be included in the estimate each year, for it would not be incurred after the first year. We think, therefore, that section refers only to the annual estimate for the department expenses.

Our conclusion is that the order and judgment should boaffirmed, with costs.

Barnard, P. J., concurs; Cullen, J., not sitting.