Muller v. Mayor of New York

Headnote

Contract— condition precedent — Appraisement of real estate belonging to the city a/nd county of Hew Torlc — when may be ordered.

The commissioners of the sinking fund of the city of New York passed a resolution appointing a committee, of which the plaintiff was one, to ascertain the value of all the real estate belonging to the city and county of New York, “ the comptroller first making satisfactory arrangements with them as to their fees.” Subsequently the comptroller, on the application of the plaintiff, said that he would give him a liberal compensation, and plaintiff replied that that would be satisfactory. Held (1), that by the resolution, the making of the agreement as to the amount of the fees was a condition precedent to plaintiff’s employment, and that the agreement proved was not a sufficient compliance therewith; (2), that even il it were, the plaintiff could not recover, as it did not appear that he had ever applied to the comptroller, after performing the work, to have him fix his compensation.

A.n appraisement of the property of the city of New York can be ordered in only two cases: (1), when occasion arises to settle rent on the renewal of leases, or the value of buildings on the expiration of a lease, which, by its terms, provides for such appraisal, in which case the comptroller is to appoint the appraisers ; and (2), for the purpose of a sale pursuant to sections 36 and 38 of the revised ordinances by the commissioners of the sinking fund, in which case the appraisement is to be made within one month before the sale by persons for that purpose specifically appointed.

MotioN by plaintiff for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after an order made at the Circuit dismissing the plaintiff’s complaint.