Brown v. Mayor of New York — 10 N.Y. Sup. Ct. 685

Majority

p. 685

JOHN L. BROWN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

Headnote

Statute a/uihority —failwre to comply with terms of, may he inquired into collaterally — chop. 580, Laws of 1872.

A failure to comply with statutory requirements in any essential respect, makes any ultimate determination' had in proceedings thereunder a nullity. Such want of jurisdiction may he inquired into collaterally.

Under an act of the legislature, commissioners were appointed to examine, after notice to the comptroller of the city of New York, into the facts and circum

p. 686

stances, relating to certain (Contracts with the city, not entered into in the manner provided by law, and if satisfied that no fraud was perpetrated in relation to the contracts, or the performance thereof, they were to make a certificate to that effect, from which time the contracts were to become valid and binding on the defendant; and the certificate was declared final and conclusive as to all questions of fraud, in relation to such contracts and the performance thereof. Held, in an action brought to recover on a contract, for which such a certificate had been given, that evidence, offered to show that the contract had never been presented to the commissioners nor investigated by them, that there had been no investigation before them as to the performance of the work, and that the work had not been performed, was improperly excluded.

Appeal from a judgment, entered on a referee’s report.

James M. Smith, for the appellant.

John E. Eevelin, for the respondent.

The recovery in this action was for work done, and materials supplied, in performing a contract, not entered into in the manner provided for by certain laws relating to the city of New York, and for that reason incapable of being enforced by legal proceedings. In 1872, an act was passed for the relief of claimants under contracts defectively entered into for city improvements, which included the one made with the plaintiff. It provided that certain commissioners named in it, upon notice served, within thirty days after the passage of the act, on the comptroller, should examine into the facts and circumstances relating to such contracts, and also into the work performed under the same. That they should give an opportunity for a hearing to the parties interested, serving such notice, and to the comptroller of the city of New York; and within ninety days after the passage of the act, should certify their determination on the contract submitted to their examination. If they became satisfied that no fraud was perpetrated in relation to the contract, or the performance thereof, then they were required to make a certificate to that effect; and from that time the contract became valid and binding upon the defendant; and the certificate made, was declared final and conclusive as to all questions of fraud in relation to such contract and the performance thereof.^[4] The proceeding provided

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for, was in the nature of a trial, on which it was essential that an opportunity for a hearing should be given, in order to render the certificate of the commissioners binding and obligatory. That was expressly declared by the second section of the act; and it was only by conforming to those requirements, that authority was given to the commissioners to make a decision. Without an opportunity for a hearing and an actual investigation by them, they could not conclude either party to the proceeding provided for. It was statutory and special in its nature, requiring a substantial compliance with the course prescribed to confer jurisdiction.

That is the well settled rule as to all purely statutory proceedings, as this was. And, if a compliance with the requirements appears to have been omitted in any essential respect, the determination ultimately made is a nullity.^[4] And this want of jurisdiction may be inquired into in a collateral proceeding,^[3]

The defendant’s answer avers that no opportunity had been given to the comptroller to be heard in relation to the certificate which the commissioners made upon the plaintiff’s contract, and that he was not heard either in person or by counsel. And it further alleged that they adjourned sme die, without having examined into the facts and circumstances relating to the plaintiff’s contract, and without having heard the plaintiff or the comptroller in relation to it, and without having passed upon it.

After the plaintiff rested his case, consisting in part of proof of the contract and the certificate of the commissioners upon it, the defendant offered to show by Mr. Strahan, the counsel for the city, that the contract was never presented to the commissioners, and that it was never investigated by them. This was excluded, on the plaintiff’s objection, and the defendant excepted. The witness was also asked whether there was any investigation before the commissioners, as to the performance of the work, or the execution of the contract, or as to whether any fraud had been perpetrated in reference to or in making it. That, upon like objection, was excluded, and the defendant excepted. These rulings cannot be sustained.

† † Chemung Canal Bank v. Judson, 4 Seld., 354.

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If the facts were as the defendant proposed to show them, then the certificate was a nullity; for it was made without authority. The commissioners had no power, under the statute, to make it, if the contract was neither presented to nor investigated by them. Their certificate was but presumptive evidence, at most, and the defendant offered by proof to "overcome the presumption, by showing that the facts stated in it were not true. Before they could lawfully make it, they were required to examine into the facts and circumstances relating to the contract. That, they certified they had done; but the substance of the offer made, was to show that to be untrue. By the disposition made of other similar offers, the certificate seems to have been relied upon as conclusive. And so it would have been if the commissioners acquired jurisdiction to make it, in the manner prescribed by the statute. But if they did not, it was without effect, and the contract continued to be invalid.

An offer was also made to show that the plaintiff had not done the work as it was required by the contract. That was objected' to, and the evidence excluded, and the defendant in like manner

excepted. The certificate seems to be relied upon in support of the exclusion of that evidence; but it cannot be attended with that effect. Bor, when made as the result of the investigation prescribed by the statute, it simply rendered the contract binding, and the decision was made final and conclusive, only as to all questions of fraud in relation to the contract and the performance of it.^[4] It was not made conclusive as to the fact of performance, but only that there was no fraud in the performance, so far as that might have extended. The provision in the contract on this subject was, that the plaintiff should not be entitled to demand or receive payment for any portion of the work or material, until the same should be fully completed in the manner set forth in the agreement, and such completion be duly certified by the surveyor and inspector in charge of the work, nor until each and every stipulation previously mentioned should be complied with, and the work completed to the satisfaction of the commissioner of public works and accepted by him. This clause in the contract required not'only that the certificate of the inspector and surveyor should be procured, that the work was performed as the contract required it to be done, but, in

* Id, § 2.

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addition to that, that it should be, as a matter of fact, fully completed in the manner set forth in the agreement. And as the certificate or decision of the commissioners was not rendered conclusive on this subject, and the inquiry was not excluded on the effect given to the certificate of the surveyor and inspector, and the acceptance of the work by the commissioner of public works, the evidence which the defendant offered should have been received. It ^as error to exclude this proof, as well as that offered to show that the commissioners have made their certificate without conforming to what the statute required from.them in order to give them jurisdiction to make it at all.

The judgment should be reversed, and a new trial ordered, with costs to abide the event'.

Davis, P. J., and Brady, J., concurred.

Judgment reversed and new trial ordered, costs to abide event.

Footnotes

* Vol. 2, Laws of 1873, 1412, 1413, §§ 1, 2.
* Bloom v. Burdick, 1 Hill, 181 ; Stone v. Miller, 63 Barb., 431 , 442; Miller v. Brinkerhoff, 4 Denio, 118 ; Staples v. Fairchild, 3 Com., 41, 46; People v. Soper, 3 Seld., 428,431.