By the Court, Brown, J.
On the 14th of October, 1846, James Collins, the plaintiff’s assignor, entered into a written contract with the defendant to grade, regulate and form an arch in Clinton avenue, from the Wallabout road to the bulkhead in the city of Brooklyn, in the manner prescribed in the contract. The contractor was to receive payment for the work as the mojiey should be collected, from time to time, on the assessment therefor. This contract was made under the act to incorporate the city of Brooklyn, passed April 8th, 1834, the 40th section of which gives the common council power to cause all streets to be graded, &c. The expense is to be charged upon the owners and occupants of the lands benefited thereby, and the assessments are to be paid into the treasury within thirty days, pursuant to section two of the act of the 28th-of March, 1836. If not paid within that time, a warrant shall be issued to the collector, to collect the same, in the like manner as warrants to the collectors of towns under the general law for the collection of taxes therein. This warrant is to be made returnable in 120 days. Upon the return of the warrant with the certificate upon oath of the non-payment of any [148]*148assessment, the common council are to advertise and sell the lands charged with the payment thereof, for the lowest term of years at which any person will take the same and pay the assessment with the interest and the charges. The period of time required for the consummation of these proceedings is less than one year. It appeared from the proof taken before the referee, that the assessments for the expenses of the work were duly made and confirmed on the 15th May, 1848, and the warrant for the collection of the same was issued to the collector in July, 1848. The work was completed by the contractor, as appeared by the certificate of the city surveyor, March 19th, 1849. The original warrant has not been returned, and no measures were taken by the common council to enforce the collection of the assessments, except a resolution of the common council, passed March 13th, 1854, directing the collector of taxes and assessments to proceed forthwith to collect the sums due for the work, and that a warrant for the collection of the same issue to the proper officers. No warrant, however, was issued under the resolution. Such moneys as had been collected and paid into the treasury had been paid over to the contractor, which consisted mainly of the money collected from the government at Washington; but a very considerable sum still remained due and unpaid to the collector. These constituted the principal facts of the case, which is substantially an action on the case for negligence, tried before a referee, who made a report in favor of the plaintiff, upon which judgment was entered in the city court of Brooklyn, and from which the defendant has appealed.
No one will think, after the decisions of this court ih McCullough v. The Mayor &c. of the City of Brooklyn, (23 Wend. 458,) and Lake v. The Trustees of Williamsburgh, (4 Denio, 520,) that the defendants in this action are primarily liable for the payment of the money due to the plaintiff upon the contract. The common council is one of the contracting parties, but it does not covenant or agree to pay any money for the labor and services to be performed on the street. They are [149]*149parties to the contract in execution of a statute, as the agents of the owners of the land benefited by the improvement, and not as strictly the agents and representatives of the city. The work is for the special benefit and improvement of such lands, and the expenses are a special charge thereon, and not upon the city at large, or its treasury. “ Ho legal duty rests upon the corporation,” says the court in the last named case, “ beyond that of setting the machinery in motion and making a right application of the funds when received.” There is also the further duty of keeping the machinery in motion until the improvement is completed, and the moneys realized to compensate those who may have been employed and expended their substance and labor for that end. “ If the common council,” say the court, in McCullough v. The Mayor of Brooklyn, “ has neglected that duty, or has been wanting in diligence, an action on the case would perhaps lie in favor of any one who like the plaintiff would be entitled to the money when collected. But a mandamus would be the more appropriate remedy. Although, as a general rule, a mandamus will not lie when the party has another remedy, it is not universally true in relation to corporations and ministerial officers.” The contract in the present case is studiously silent in regard to the duties and obligations of the common council. It does not even say that it will proceed with reasonable diligence to make and collect the assessments. It has duties and obligations, nevertheless, which are to be implied from the nature of the transaction and the objects to be accomplished by the statutes under which it acts. These objects are the opening and the improving of streets, within the city limits, upon just and equitable principles. These improvements involve large expenditures of moneys, and unless the law imposed duties upon the corporate authorities adequate to the due execution of the laws, and the collection of the necessary means, the improvements could not be made and the laws would fail to be executed. These acts for the opening and improvement of streets and avenues within the bounds of municipal corporations are acts [150]*150of public concern. They promote the health, the comfort, the convenience and the necessary business of the inhabitants, and thus concern the public welfare. When the public interest calls for the execution of the powers conferred by these statutes, the corporation are not at liberty to withhold it. The exercise of the power becomes a duty which the corporation are bound to fulfill. (The Mayor of New York v. Furze, 3 Hill, 612.) In the case of West v. The Trustees of the Village of Brockport, decided by Judge Selden at the special term, and reported in a note in the 16th New York Reports, 161, and which received the sanction of the court of appeals, we have this exposition of the duties and obligations of individuals as well as corporations • “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance The action was against the trustees, for the negligent and careless construction of a platform in a public street, by which the plaintiff was injured; the trustees having power given them by statute “ to open, improve, ornament, construct and repair streets; alleys and sidewalks The plaintiff was nonsuited at the trial, and the nonsuit was after-wards set aside upon the principle which I have extracted" from the opinion. (See also Conrad v. Trustees of Ithaca, 16 N. Y. Rep. 158; Hunt v. The City of Utica, 18 id.
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By the Court, Brown, J.
On the 14th of October, 1846, James Collins, the plaintiff’s assignor, entered into a written contract with the defendant to grade, regulate and form an arch in Clinton avenue, from the Wallabout road to the bulkhead in the city of Brooklyn, in the manner prescribed in the contract. The contractor was to receive payment for the work as the mojiey should be collected, from time to time, on the assessment therefor. This contract was made under the act to incorporate the city of Brooklyn, passed April 8th, 1834, the 40th section of which gives the common council power to cause all streets to be graded, &c. The expense is to be charged upon the owners and occupants of the lands benefited thereby, and the assessments are to be paid into the treasury within thirty days, pursuant to section two of the act of the 28th-of March, 1836. If not paid within that time, a warrant shall be issued to the collector, to collect the same, in the like manner as warrants to the collectors of towns under the general law for the collection of taxes therein. This warrant is to be made returnable in 120 days. Upon the return of the warrant with the certificate upon oath of the non-payment of any [148]*148assessment, the common council are to advertise and sell the lands charged with the payment thereof, for the lowest term of years at which any person will take the same and pay the assessment with the interest and the charges. The period of time required for the consummation of these proceedings is less than one year. It appeared from the proof taken before the referee, that the assessments for the expenses of the work were duly made and confirmed on the 15th May, 1848, and the warrant for the collection of the same was issued to the collector in July, 1848. The work was completed by the contractor, as appeared by the certificate of the city surveyor, March 19th, 1849. The original warrant has not been returned, and no measures were taken by the common council to enforce the collection of the assessments, except a resolution of the common council, passed March 13th, 1854, directing the collector of taxes and assessments to proceed forthwith to collect the sums due for the work, and that a warrant for the collection of the same issue to the proper officers. No warrant, however, was issued under the resolution. Such moneys as had been collected and paid into the treasury had been paid over to the contractor, which consisted mainly of the money collected from the government at Washington; but a very considerable sum still remained due and unpaid to the collector. These constituted the principal facts of the case, which is substantially an action on the case for negligence, tried before a referee, who made a report in favor of the plaintiff, upon which judgment was entered in the city court of Brooklyn, and from which the defendant has appealed.
No one will think, after the decisions of this court ih McCullough v. The Mayor &c. of the City of Brooklyn, (23 Wend. 458,) and Lake v. The Trustees of Williamsburgh, (4 Denio, 520,) that the defendants in this action are primarily liable for the payment of the money due to the plaintiff upon the contract. The common council is one of the contracting parties, but it does not covenant or agree to pay any money for the labor and services to be performed on the street. They are [149]*149parties to the contract in execution of a statute, as the agents of the owners of the land benefited by the improvement, and not as strictly the agents and representatives of the city. The work is for the special benefit and improvement of such lands, and the expenses are a special charge thereon, and not upon the city at large, or its treasury. “ Ho legal duty rests upon the corporation,” says the court in the last named case, “ beyond that of setting the machinery in motion and making a right application of the funds when received.” There is also the further duty of keeping the machinery in motion until the improvement is completed, and the moneys realized to compensate those who may have been employed and expended their substance and labor for that end. “ If the common council,” say the court, in McCullough v. The Mayor of Brooklyn, “ has neglected that duty, or has been wanting in diligence, an action on the case would perhaps lie in favor of any one who like the plaintiff would be entitled to the money when collected. But a mandamus would be the more appropriate remedy. Although, as a general rule, a mandamus will not lie when the party has another remedy, it is not universally true in relation to corporations and ministerial officers.” The contract in the present case is studiously silent in regard to the duties and obligations of the common council. It does not even say that it will proceed with reasonable diligence to make and collect the assessments. It has duties and obligations, nevertheless, which are to be implied from the nature of the transaction and the objects to be accomplished by the statutes under which it acts. These objects are the opening and the improving of streets, within the city limits, upon just and equitable principles. These improvements involve large expenditures of moneys, and unless the law imposed duties upon the corporate authorities adequate to the due execution of the laws, and the collection of the necessary means, the improvements could not be made and the laws would fail to be executed. These acts for the opening and improvement of streets and avenues within the bounds of municipal corporations are acts [150]*150of public concern. They promote the health, the comfort, the convenience and the necessary business of the inhabitants, and thus concern the public welfare. When the public interest calls for the execution of the powers conferred by these statutes, the corporation are not at liberty to withhold it. The exercise of the power becomes a duty which the corporation are bound to fulfill. (The Mayor of New York v. Furze, 3 Hill, 612.) In the case of West v. The Trustees of the Village of Brockport, decided by Judge Selden at the special term, and reported in a note in the 16th New York Reports, 161, and which received the sanction of the court of appeals, we have this exposition of the duties and obligations of individuals as well as corporations • “ That whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to enure to the benefit of every individual interested in its performance The action was against the trustees, for the negligent and careless construction of a platform in a public street, by which the plaintiff was injured; the trustees having power given them by statute “ to open, improve, ornament, construct and repair streets; alleys and sidewalks The plaintiff was nonsuited at the trial, and the nonsuit was after-wards set aside upon the principle which I have extracted" from the opinion. (See also Conrad v. Trustees of Ithaca, 16 N. Y. Rep. 158; Hunt v. The City of Utica, 18 id. 442.) The authority given to the corporation of the city of Brooklyn, by the statutes to which I have referred, is a most vital and valuable part of the sovereign power of the state, for it is, amongst other things, the right to take private property for public use under the law of eminent domain. The common council are therefore accountable for the manner of its [151]*151exercise. It cannot institute proceedings to open and grade street's and avenues, and through mere negligence and inattention leave them imperfect and incomplete, to the detriment and injury of individuals. In making contract's with others, in execution of the powers bestowed Upon it, no liability will be created, so long as it acts within the scope df its authority, and with usual and reasonable diligence. But it cannot with impunity enter into contracts with individuals by which they ate induced to expend their labor and substance in works of public improvement, and then refuse or negligently omit to employ the means given it by law for their recompense and reimbursement. Collitts, the contractor, according to the certificate of the city surveyor, executed his part of the contract with reasonable fidelity and dispatch. Ho fault is imputed to him. It is not claimed or pretended that the lands benefited by the work are not of sufficient value, if sold, to pay the expenses incurred, for no effort or attempt has been made to bring them to a sale. The collector’s warrant, with the return thereto under oath, has not even been filed in the proper office, so that a valid sale of the lands charged could have taken place. The contractor has no power over the collector to enforce the return of the warrant, nor has he any authority to issüe a new warrant. He cannot sell the lands himself, for the satisfaction of his Undisputed claim. In short'he is remediless, because the legislature has delegated the power necessary to collect the money to the common council, and to no one else. The negligent omission of the defendant is too manifest to admit of any doubt, and the authorities to which I have referred are decisive in favor of the plaintiff’s right to recover.
In addition to the sum of money assessed to the general government, the street commissioner collected from it the sum of $2092 for interest. This sum was by a resolution of the common council paid to the contractor as interest upon his claim, in consideration of the delay in the payment. The counsel for the city now claim that the referee erred in not charging this sum as a payment upon the principal sum due [152]*152the contractor for the work. In this view I do not concur. The common council have no interest in this affair, except to execute the laws.. As has been said before, it is the agent of the parties interested. It received the $2092 as interest, and very properly paid it over as such. What else could be conscientiously or legally done with it ?
[Kings General Term,
February 13, 1859.
The judgment should he affirmed.
Lott, Emott and Brown, Justices.]