Farmers' Loan & Trust Co. v. Mayor of New York — 17 N.Y. Super. Ct. 80

Majority

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The Farmers' Loan and Trust Company, Plaintiffs and Respondents, v. The Mayor, &c., of New York, Appellants.

Headnote

1. The hiring of a pier by the Mayor, Aldermen and Commonalty of the City of New York, for the purpose of removing oifal from the city, is a transaction not affected by the provisions of §. 12, of chap. 217, of the Laws of 1853. (P. 412.) The use of the pier hired for such a purpose, and used accordingly, is not work done, nor a supply furnished within the meaning of that section.

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2. Neither the Mayor nor the Comptroller of said city, has the power, as such officer,' to hire property for such a purpose, so as to render the city corporation liable to pay for such use.

3. Where it appeared that a pier belonging to a third person (the plaintiffs) had been taken and used for such a purpose, from the 8th of July, 1851, to the 29th of May, 1854, by the direction of the Mayor and City Inspector of said city; and that the owners of the pier remonstrated with the Mayor, and he replied “that he had ordered the boats to go there, and he would keep a police force to prevent her being driven away; and furthermore, that we,” (the plaintiffs,) “ should be paid for the use of our property;” and that the Comptroller had paid to the plaintiffs at one time, by a warrant drawn on the Chamberlain of the city, for such use of the pier up to July 8, 1853, at the rate of $1,200 a year; and that in April, 1852, the city, by its City Inspector, (lie being thereto authorized by an ordinance or resolution adopted April 17, 1852,) made a valid contract with one Reynolds for the removal by him of offal from the city, and therein agreed “to set apart two of the docks and slips of the city of New York, one on the East river and one on the North river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing for the boats required by him for removal of substances mentioned in said contract;” and that Reynolds used such pier as a place of landing for such boats until May 29,1854, with the knowledge of the said Mayor and City Inspector; and that such use •was made in removing offensive substances from the city, under the direction of the City Inspector, under the said ordinance authorizing him to bo contract with said Reynolds, and that such use existed before and at the time such ordinance was passed and contract made; it was held, in an action against the defendants to recover for the use of such pier from July 8, 1853, to May 29th, 1854;

4. First, That such facts did not constitute prima facie evidence that the corporation had hired such pier, by a contract to that effect, made by any of its officers authorized to contract for it in that behalf.

5. Second, That they did not furnish prima facie evidence of a ratification by defendants, of any unauthorized contract of hiring made by its agents in its behalf.

6. Third, That the City Inspector had no power to designate the piers which Reynolds was to use under his contract. The corporation, by their contract, only contracted to designate two of the piers actually owned by the city.

7. Fourth, That the defendants were not hable for the use made by Reynolds of the plaintiffs’ pier.

(Before Bosworth, Ch. J., and Hoffman, J.)

Heard, November 8, 1858;

decided, January 29th, 1859.

This is an appeal by the defendants from a judgment entered against them, upon the report of Henry Nicoll, Esq., as referee.

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The complaint is as follows: (Title.)

“ The complaint of the above named plaintiffs respectfully shows unto this court, that the above named defendants are now justly indebted unto the said plaintiffs in the sum of one thousand and seventy dollars, with interest, for the use and occupation by the said defendants of a certain pier or wharf of the said plaintiff’s, situate on the East river, between Thirty-Fourth and Thirty-Fifth streets, in the city of New York, which said pier was occupied, possessed, and enjoyed by the sufferance and permission of the said plaintiffs, for a long space of time since elapsed, that is to say, from the eighth day of July, 1853, until the twenty-ninth day of May, 1854, and for which said use and occupation, they, the said defendants, undertook and faithfully promised the said plaintiffs to pay them so much money therefor, as they therefor reasonably deserved to have of the said defendants, when the said defendants should thereunto be requested ; and the said plaintiffs say, that they therefor reasonably deserved to have of the said defendants the sum of one thousand and seventy dollars, of which the said defendants'had notice; and although often requested, they have hitherto refused, and still do neglect and refuse to pay the said sum of money to the said plaintiffs.

“ Wherefore the said plaintiffs demand judgment in this action against the said defendants for the said sum of one thousand and seventy dollars, with interest from the twenty-ninth day of May, 1854, besides costs.”

The answer is merely a general denial of each and every allegation contained in the complaint.

The finding of the referee is as follows:

I. That on the 30th day of May, 1849, an ordinance, entitled, “An Ordinance organizing the Departments of the Municipal Government of the City of New York, and prescribing their powers and duties,” was passed by the defendants in Common Council convened, and approved by the Mayor.

II. That said ordinance was in existence and'in force on the 8th day of July, 1851.

III. That by said ordinance there is established a City Inspector’s Department as one of the Departments of the said Municipal Government, the chief officer of which department is denomi

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nated the City Inspector, who is required by said ordinance to take all necessary measures to ascertain every nuisance and cause it to be removed, and also to cause all putrid beef, dead animals, and every other putrid and offensive substance found in any street or other place in the city, to be forthwith removed and cast into the river from the nearest wharf, or otherwise disposed of so as most effectually to secure the public health.

IY. That in the month of July, 1851, one William B. Reynolds was engaged in the business of removing offensive substances in the city of New York, under the direction of the City-In speetor of the defendants.

Y. That said Reynolds for that purpose had certain boats required and used in cariying off the said substances from said city.

YI. That the said Reynolds on or about the 8th day of July, 1851, by the direction of the Mayor of the City of New York, and of the said City Inspector, and against the wishes of plaintiffs, took forcible possession of the pier or wharf belonging to the plaintiffs in the complaint mentioned.

YII. That the said Reynolds used the same as a place of landing for said boats, and continued so to use the same for such purpose, under the direction of the City Inspector, and against the remonstrances of the plaintiffs, from the 8th day of July, 1851, to and including the time of making the contract hereafter mentioned.

YIII. That the said defendants, in May, 1852, in Common Council convened, passed a resolution, approved by the Mayor of said city, on the 17th day of April, 1852, empowering the said City Inspector to contract with said Reynolds, for the removal of dead animals and other offensive substances beyond the limits of the city of New York, under the immediate direction of the City Inspector for a term of five years.

IX. That in conformity with said resolution, said defendants, by A. W. White, then the City Inspector of the defendants, on the 24th of April, 1852, made a contract with Reynolds, which is the contract set forth in the case herein.

X. That said defendants agreed by said contract to set apart two of the docks and slips of the city of New York, one on the

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East river and the other on the Eorth river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing for the boats required by him for removal of substances mentioned in said contract.

XI. That said Reynolds used and occupied the wharf or pier of the plaintiffs as a place of landing for the boats required for the purposes aforesaid, and, after the making of the said contract, continued to use and occupy the same until May 29th, 1854.

XTT That such use and occupation by the said Reynolds were with the knowledge of the Mayor and City Inspector of the defendants, and such use and occupation having been also in the business of removing offensive substances in the city of Eew York, under the direction of the said City Inspector under the ordinance aforesaid, and for no other purpose, and said use and occupation continuing and existing at the time of the making of the aforesaid resolution by the defendants in Common Council convened, in May, 1852, as well as at the time of making the aforesaid contract with said Reynolds, in pursuance of said resolution, and thenceforth up to the 29 th day of May, 1854, such facts are sufficient evidence that said use and occupation was with the knowledge of the defendants, and the referee therefore finds the facts so to be.

XIII. That for the use and occupation of said pier from the 8th day of July, 1853, until the 29th day of May, 1854, the plaintiffs reasonably deserve to have $1,070, of which the defendants, on said last mentioned day, had notice.

XIV. That the defendants, although requested to pay the same, have refused to pay said sum to plaintiffs.

The referee found the following conclusions of law:

I. That the evidence aforesaid was and is sufficient to sustain the finding of fact, that the use and occupation aforesaid was with the knowledge of the defendants.

To which said conclusion of law and decision of the said referee the defendants duly excepted. '

II. That the defendants are indebted to the plaintiff for the use and occupation of the pier aforesaid, from the 8th day of July, 1853, to the 29th day of May, 1854, in the sum of $1,070, with interest from the 29th of May, 1854.

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To which said conclusion of law and decision of said referee the defendants duly excepted.

TIT. That the plaintiffs are entitled to judgment for the aggregate of said amount of $1,070 and interest as aforesaid, being $1,356.50.

It appeared, also, in evidence, that the boats employed to remove the offal, termed by a witness, (the President of the plaintiffs,) “ nuisance boats,” were at the pier from July 8, 1851, until May, 1854; and that he, the witness, collected from the Comptroller of the City two years’ rent, viz.: From July, 1851, to July 8, 1853. The amounts paid were at the rate of $1,200 a year. The President was informed by the Mayor of the City, (on remonstrating with him for taking possession of the pier,) that he would keep a police force., to prevent the boats being driven away, and that the plaintiffs should be paid for the use of the property.

The ordinance of the 17th of April, 1852, was, by consent, read in evidence, and the first, second, and fifth sections, all that are deemed material, are as follows:

“ § 1. There shall be designated and set apart, for the use of the City Inspector, two of the docks and slips of the city of New York, one on the Eastriver, and the other on the North river; said docks and slips shall be under the sole authorized direction of the City Inspector; and shall be used by him as a place of landing for such boats as may be required for the removal of the butcher’s blood,” offals, &c., from the city.

§ 2. No ship or vessel shall come in or lie at any of said docks or slips, designated as aforesaid,, without permission of the City Inspector. By section four, the City Inspector was to give licenses to carts, (to be furnished by contractors for removing offal,) to remove the offal.

§ 5. No dead animal shall be cast or thrown into the East or North rivers, or any waters within the limits of the city; but shall be removed by the persons licensed, as aforesaid, for that purpose, to the docks and slips of the City Inspector.

Judgment was entered on the report, on the 13th of March, 1858, in favor of the plaintiffs, against the defendants, for the

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sum of $1,541.31, from which judgment, the present appeal was taken.

D. E. Sickles, for defendants, the appellants.

M. S. Bidwell, for the respondents.

I. It was proved, by competent and sufficient evidence, that the pier was taken possession of and occupied from the beginning under the authority and for the benefit of the defendants.

1. Reynolds was employed by them, under a contract which has been adjudged to be valid, (People ex rel. v. Flagg, 16 Barb. R., 503,) to remove offal ■ from the city; and the defendants engaged by that contract to furnish him with the use of a pier for that purpose; the pier to be so used was to be set apart and designated “ under the direction of the City Inspector.”

2. The pier was used by Reynolds, in the execution of the contract, for that purpose.

3. There was evidence to show it was so occupied with the knowledge and consent, and by the direction and designation, not only of the Mayor, but also of the City Inspector, who was the proper officer and agent of the defendants for that purpose, (Laws of 1849, p. 282, § 16; City Ordinances of May 30, 1849,) and who was'the officer authorized and appointed by the defendants to do this very act.

4. The defendants did not provide or designate any other pier for the purpose. This fact, in connection with the actual use and occupation of the plaintiffs’ pier by Reynolds, under the direction of the Mayor and City Inspector, furnished at least strong presumptive evidence that the defendants authorized this pier to be taken under their contract with Reynolds.

5. Eo separate resolution or appropriation was necessary.

II. Even supposing the taking occupation of the plaintiffs’ pier was originally unauthorized by the defendants, yet the payment of rent by the Comptroller, (the proper disbursing officer of the corporation,) for two years, is evidence of a ratification of the contract by them, and of a hiring on their part from year to year at the rate of $1,200 per annum. (Hayward v. The Pilgrim Soc., 21 Pick. R., 275; Wood v. State, 5 Bos. and Pull., 246, 248; Doe & Carlisle v. Woodman, 8 East., 228.)

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It is to be presumed that this payment was stated m his accounts and report, and was known to the Mayor and Common Council. (1 Cow. and Hill, 296, 297; Best on Presumptions, 68, 31 Law Lib.)

III. Even supposing the payment of rent by the Comptroller insufficient to bind the defendants, so far as to raise the presumption of a letting from year to year, the plaintiffs are still entitled to recover on a quantum, meruit; no express promise need be shown, and one may bring assumpsit for the use and occupation of his property, though originally taken without his consent. ( 1 Hill, 240 , note A.)

IV. As to the objection that all work to be done or supplies to be furnished for the corporation, involving an expenditure of - more than two hundred and fifty dollars, must be by contract, &c., (Laws of 1853, chap. 217, p. 412, § 12,) there are several answers.

1. There was a contract; the defendants contracted to provide

a dock, &c., and this pier was taken and set apart under that contract. The case is, therefore, within the very letter of the law, and it is clearly within its spirit; the abuse which this law was designed to prevent was guarded against as effectually by this contract, as if a contract had been made with the plaintiffs themselves for this pier. . ,

2. The law has no application to this case, because,

1. The action is not brought for “ work done or supplies furnished ” for the corporation, the use and occupation of the plaintiffs’ property not being the one or the other; and as the statute is interposed in support of an objection that is most inequitable, and in derogation of common law and common right, it should be construed literally and strictly, and not extended to a case not within its very words; especially, as in this case, such a construction will not be inconsistent with the great object of it, or countenance the mischief which it was intended to prevent.

2. The statute has no application to executed contracts; at least it does not apply so far as to defeat a recovery to the extent of the benefit which the defendants have actually received.

V. By the express contract between the defendants and Reynolds, they were to provide a pier for him.

If they had not done it, he would have had a right to provide it at the defendants’ expense, and to recover the value of such accom

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modation from the defendants. If he obtained such accommodation from the plaintiffs, they are entitled either to sue the defendants, on the ground that Reynolds was their agent in using the pier, or upon the principles of equity jurisprudence, to be substituted in his place, and subrogated to his rights, in which case the provisions of his contract will enure to their benefit.

If, upon the other hand, the defendants did provide a pier for Reynolds, pursuant to their contract, then, as it was no other than the plaintiffs’ pier which they used for that purpose, they cannot deny having used and occupied it; and upon that ground the plaintiffs are entitled to compensation from the defendants.

So that, quacwnque via data, we come to the conclusion that the plaintiffs were entitled to recover from the defendants a just compensation for the use of their property.

The judgment should be affirmed with costs.

The first and an important question is, whether the twelfth section of the charter of 185B applies to the case. The question is one of great practical moment beyond the decision of the present action. The counsel of the defendants insists that it controls. The counsel of the plaintiffs has made several points to show that it is inapplicable.

That section provides “ that all work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than $250 must be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days; and all such contracts, when given, shall be given to the lowest bidder, with security.”

In the case of Brady v. The Mayor, &c., of New York, in this court, ( 2 Bosw., 173 , and 7 Abb., 238 ,) it was held, that where a contract under which work had been done was void, because entered into in violation of this provision of the charter, the contractor could not recover for the work in any form; neither under the contract, nor as upon a quantum meruit. A subsequent ratification was of no more validity than the original contract. If this were allowed, this restriction in the charter would become practically null, and the officers and agents through whom alone the corporation can act, might disregard the statute, and in practice repeal it. The difficulty lies, not merely in the want of original

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power in the agents to make the contract, but in the want of power in the corporation itself to make the contract, otherwise than in the mode prescribed by the charter.

If then the present case is within the provision, nothing short of an express contract entered into after full.compliance with its directions, could be binding upon the corporation.

It may be, as the learned counsel of the plaintiffs contends, that in the ordinary acceptation of the terms, the hiring of a pier for public purposes was neither “ work done,” nor “ supplies furnished.” Yet an enlarged etymological sense of the word “supply” comprises anything yielded or afforded, to meet a want.

It is clear however, that there must be a class of cases, in which the very object of the exercise of a municipal power, would indicate the inapplicability of the provision. The establishment of a market within a particular district of the city calls for the exercise of a discretion in choosing the locality, so as to meet the convenience of the greater number and facilitate the means of cleansing, which might be wholly defeated or impaired if the corporation was compelled to advertise and take the plot of ground offered by the lowest bidder. The selection of piers for the purpose of casting away the offal of the city, falls within the same principle. It would be a misuse of power, to take for this purpose a pier daily thronged with carts and laborers, for loading or unloading the cargoes of vessels. The particular force and direction of the tide may render one spot far more eligible than another. The distance from dwelling houses would be another element of consideration.

In the case of The People v. Flagg (17 N. Y. R., 584), it was strongly urged by Judge Comstock that the construction of the phrase “ work to be done ” used in this provision, did not extend it to the making of a survey and maps by a surveyor requiring skill and professional knowledge for its performance. “This would be an unreasonable and mischievous construction of the statute.” Justice Roosevelt was of a different opinion on the facts of that case; and the Court abstained from expressing an opinion upon the point.

It appears to me that the principle contained in the opinion of Judge Comstooic applies with even greater force to the cases I have suggested, than to the one before him.

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It may perhaps be found upon a more extended investigation of the extent and meaning of the provision, that it does nob apply to cases of the acquisition of real property by purchase or hiring for the purposes of municipal government, within acknowledged powers of the corporation. It may be that the phrase is used in-the sense in which it is employed in the commercial law, and in various statutes, as relating merely to personal property, going into or forming part of something else or contributed for the use of something else, or towards its efficiency. The maritime doctrine as to supplies for ships, the State Statutes in aid of material-men are instances of this nature. ( 4 Wheat., 438 ; Kent’s Com., vol. 3, p. 169; 1 Blatch. & Howl., 177; 2 R. S., of 1830, 493; The Calisto, Daveis R., 31.)

It is in this sense that the phrase is used in various enactments connected with the government of Hew York. Thus, in section 13 of the charter as amended in 1849, there is constituted an Executive Department called The Department of “ Repairs and Supplies,” having cognizance of all repairs and supplies of and for roads and avenues, pavements, fire engines, &c.

So in section 14, the department of streets and lamps shall have cognizance of procuring the necessary supplies for, and of lighting the public streets, &o

And section 23 of the same chapter provides, that “ all contracts to be made or let by authority of the Common Council for work to he done or supplies to be furnished," and all sales of personal property shall be made by the appropriate heads of departments, under such regulations as shall be established by ordinances.

All the previous sections establishing departments contemplate expenditures distinct from any acquisition of real estate. Ho such power is any where granted to or is to be inferred as possessed by either of them.

But without pursuing this subject further, or attempting to define either what is comprehended in or what is excluded from the purview of the provision in question, it is sufficient to say, that in our opinion the hiring of a pier by the corporation for the purpose of removing offal from the city, is not within it.

We must, therefore, proceed to the other questions in the cause.

2. The right to hire a pier for the purpose of fulfilling the duty of the corporation in the removal of nuisances, is a power

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inherent in the Common Council, because necessary or important for the exercise of an admitted and vested • power. The charters gave the corporation power to hold land in fee simple to them and their successors forever; but a restriction was imposed in the Montgomery Charter, that the annual income should not exceed £3,000 sterling. (See upon the subject of this restriction, Kent’s Notes, note 48; 2 Coke’s Inst., 722, and Flagg v. Lowber, 7 Abb. R., 176.)

Whatever may be the legal operation of this restriction at the present day, it was a restriction upon the right to hold lands in perpetuity, which right, upon common law principles belongs to a corporation. (2 Kent’s Com., 281.) It does not affect the present question, which relates to a power to hire lands for a particular period, in order to fulfill a duty, and in the exercise of a power necessary, for municipal purposes. That authority which is material in order to execute the purposes for which a corporation is created, is possessed by implication. (1 R. S., 1830, 600, § 3; 4 Hill, p. 39, 13 Mass. R., 199 .)

The late case of The People and Flagg v. Lowber (7 Abb. R., 176), illustrates this view. The power to purchase land for a market site was held to attend and result from a power to establish markets, and the restriction as to income before referred to, was held inapplicable.

3. Whether the Common Council have lawfully done anything out of which its liability for the rent can arise is in the next place to be examined.

As I understand the claim, it is rested upon these several propositions : First. That the Comptroller could create this liability, and has done so; next, that the Mayor could do it, and his engagement is proven; again, that there was an implied ratification of the payment by the Comptroller, from the assumed knowledge of his disbursements, and therefore a hiring by the Common Council; and lastly, that the resolution of April 17th, 1852, and the contract with Reynolds, establish the responsibility.

The two first propositions may easily be disposed of. There is not the semblance of power in the Comptroller or Mayor, to hire property for the purposes in question, and bind the corporation to pay for it.

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The next ground, of an implied ratification, is also unsatisfactory. It could not, I think, extend further than to prevent the corporation from recovering back the money paid over, admitting that this would be its effect.

The ordinance of May, 1849, gave to the City Inspector power to remove dead animals, &c., and to cast them into the river, three hundred feet from the nearest wharf, or otherwise to dispose of them as most effectually to secure the public health. The first clause of the ordinance may, perhaps, be so reasonable as that the Inspector would be warranted in going upon a private pier, merely to cast the carcasses into the river. But there is nothing in it to warrant the hiring of any pier or wharf for any of his official purposes.

The possession of the pier taken by Reynolds, under the direction of the City Inspector and Mayor, in July, 1851, was forcible. It did not profess to be in the exercise of a power to contract; and there was no such power in either of them.

The contract with Reynolds, of the 24th of April, 1852, was valid, and has been decided to be so. ( 16 Barb., 503 .) By that contract, the corporation, by A. W. White, City Inspector, agreed, “in pursuance of the first section of an ordinance of the 17th of April, 1852, to designate and set apart for the use of the City Inspector, two of the docks and slips of the city of New York, one on the East river, and the other on the North river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing of the boats lo be employed for the removal of the offal, dead animals, &c., the free access to and use thereof, to be secured to said Reynolds.

The first section of the ordinance does not contain any power for any officer to hire a pier. It provides that there shall be designated two docks or slips of the city, for the use of the City Inspector, to be under his control, and to be used by him as a place of landing for the boats required.

I have concluded that the corporation, in this ordinance, did nothing more than to agree to designate two of the piers actually owned by the city, to be used for these purposes; and that the liberal construction insisted upon, that they covenanted to designate one of their own piers, or to procure a pier of another party, is inadmissible.

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Thus it stands, under all these documents, that the corporation was itself to designate a public pier, and. did not even give the City Inspector power to do so; and what is of more importance, a construction cannot be sustained which implies the hiring of a private pier, or the delegation of any power to any one to do so.

Now, it is true, and sustained by eases, some of which were cited, that it is a sound rule of law, that whenever a corporation is acting within the scope of its legitimate purposes, all parol contracts made with its authorized agents are express promises by the corporation; and all duties imposed upon them by law, and all benefits conferred at their request, raise implied promises for which an action may well lie. (Story, Justice, 7 Cranch., 306 ; Fister v. La Rue, 15 Barb., 323 ; Randell v. Van Vechten, 19 Johns. R., 60; Clarke v. Guardians of Cuckfield Union, 11 Eng. L. & Eq. R., 442.)

But in all such cases, either a duly authorized agent fixed the liability of the body, or it recognized the obligation to pay, by accepting the work or services or supplies. Where it possesses original power to make the contract, it may recognize a duty to pay for what has been done without contract, although if destitute of such original power the case is different. (The People v. Flagg, 17 N. Y. R., 586.)

In the present case, there was no act which could be treated in any way as tending to a ratification, except the unauthorized payment of rent, by the Comptroller, on some occasions. This is wholly insufficient.

It is impossible, also, to support the proposition, that the mere fact of rendering services to the corporation, and of that body reaping a benefit from them affords a ground of action. (17 N. Y. R., 591.)

These conclusions render it unnecessary to discuss the question, whether as the origin of the possession was the forcible entry upon the plaintiffs’ land, a suit for the value of the occupation, as for rent, can be maintained. The City Inspector and Reynolds, perhaps the Mayor, were, on the facts found, trespassers; could have been turned out, and been made responsible for mesne profits. ( 1 Wend., 134 ; 1 R. L., 1813, p. 444, § 31; Smith v. Stewart, 6 Johns., 46 ; Osgood v. Dewey, 13 id., 240.)

A new trial must be granted, with costs to abide the event.

Ordered accordingly.