Donovan v. . the Mayor, C., of N.Y.

New York Court of Appeals

Donovan v. . the Mayor, C., of N.Y.

33 N.Y. 291

CourtNew York Court of Appeals

DecidedSeptember 5, 1865

StatusPublished

Cited by28 cases

This text of 33 N.Y. 291 (Donovan v. . the Mayor, C., of N.Y.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donovan v. . the Mayor, C., of N.Y., 33 N.Y. 291 (N.Y. 1865).

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Opinions

This is a hard case. A great number of a similar character now pending in the court below, depend upon our decision. If the appellants prevail, the respondent and those similarly situated will be without redress, unless against those who without authority assumed to employ them. If the respondents are right, the city of New York and all other municipal corporations within the limits of the State are delivered over to the local authorities, to be dealt with at the pleasure of city and county officials, practically free from the restraints of State sovereignty, and the limitations of general laws for the protection of the constituent body against favoritism, corruption and improvidence.

The answer of the defendants does not deny that the expenditure in question was contracted by the corporation, and the demurrer substantially admits that the debt was contracted in express violation of law. It concedes: 1. That at the time the cause of action is alleged to have accrued, the appropriation for the expenses of repairing the city roads and avenues for the year 1863 was exhausted. 2. That there neither was nor is in the city treasury any money applicable to the plaintiff's claim. 3. That the necessity for the work alleged in the complaint was never certified by the head of the appropriate department. 4. That the work alleged to have been performed by the plaintiff, was never authorized by vote of the common council.

The amended charter of the city provides, that "no expense shall be incurred by any of the departments or officers, whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been made covering such expense." (1 Laws of 1857, p. 884, § 28.) It further provides that "no expenditure for work or supplies, for which no contract is required, shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure be as authorized by the common council." (1 Laws of 1857, p. 886, § 38.)

The act appropriating the sum of $75,000 for work on the roads and avenues in the year 1863, embraces an express *Page 293 provision, that nothing therein contained should be "construed to authorize any department or officer of said corporation, or any other person or persons, to incur any expenses for any purposes whatever, to be paid from the city treasury, which are not expressly authorized by law, or exceeding in amount the sums provided for respectively by this act, or by other laws." (Laws of 1863, p. 310, § 3.)

The expenditure alleged in the present case belonged to the street department. (1 Laws of 1857, p. 880, § 23.) As there was neither an appropriation for the work nor a certificate of its necessity by the head of the department, and as it was unauthorized by the common council, the contract was made by the municipal authorities in direct violation of law. A contract thus made by public officers, acting in a purely fiduciary capacity, is a simple and absolute nullity. The city has no power to act, except through its municipal officers, and when they assume, as its agents, to exercise authority in disregard of prohibitions applying alike to them and their principal, their action is wholly ineffectual, unless it be to subject them to personal liability for assuming powers with which the law has not clothed them. (Irish Eq. R., new series, 19.)

The parties aggrieved have no remedy against the corporation. They were employed in contravention of the policy and terms of the statute, and they cannot invoke the aid of the courts to enforce an unlawful agreement. They could not contract with the city, except through its authorized agents, and they are chargeable in law with notice of the limitations of official authority imposed by general laws. (Fairtitle v. Gilbert, 2 Durn. East, 169; Hodges v. City of Buffalo, 2 Denio, 110, 112; Brady v. Mayor of New York, 2 Bosw., 173, 183; S.C. affirmed, 20 N.Y., 312; Appleby v. Mayor of New York, 15 How., 428; Supervisors of Rensselaer v. Bates, 17 N.Y., 242;Smith v. Mayor of New York, 4 Sandf., 227; S.C. affirmed, 6 Seld., 508.)

The decision of the Supreme Court should be reversed, with judgment for the defendant on the demurrer. *Page 294

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This is a hard case. A great number of a similar character now pending in the court below, depend upon our decision. If the appellants prevail, the respondent and those similarly situated will be without redress, unless against those who without authority assumed to employ them. If the respondents are right, the city of New York and all other municipal corporations within the limits of the State are delivered over to the local authorities, to be dealt with at the pleasure of city and county officials, practically free from the restraints of State sovereignty, and the limitations of general laws for the protection of the constituent body against favoritism, corruption and improvidence.

The answer of the defendants does not deny that the expenditure in question was contracted by the corporation, and the demurrer substantially admits that the debt was contracted in express violation of law. It concedes: 1. That at the time the cause of action is alleged to have accrued, the appropriation for the expenses of repairing the city roads and avenues for the year 1863 was exhausted. 2. That there neither was nor is in the city treasury any money applicable to the plaintiff's claim. 3. That the necessity for the work alleged in the complaint was never certified by the head of the appropriate department. 4. That the work alleged to have been performed by the plaintiff, was never authorized by vote of the common council.

The amended charter of the city provides, that "no expense shall be incurred by any of the departments or officers, whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been made covering such expense." (1 Laws of 1857, p. 884, § 28.) It further provides that "no expenditure for work or supplies, for which no contract is required, shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure be as authorized by the common council." (1 Laws of 1857, p. 886, § 38.)

The act appropriating the sum of $75,000 for work on the roads and avenues in the year 1863, embraces an express *Page 293 provision, that nothing therein contained should be "construed to authorize any department or officer of said corporation, or any other person or persons, to incur any expenses for any purposes whatever, to be paid from the city treasury, which are not expressly authorized by law, or exceeding in amount the sums provided for respectively by this act, or by other laws." (Laws of 1863, p. 310, § 3.)

The expenditure alleged in the present case belonged to the street department. (1 Laws of 1857, p. 880, § 23.) As there was neither an appropriation for the work nor a certificate of its necessity by the head of the department, and as it was unauthorized by the common council, the contract was made by the municipal authorities in direct violation of law. A contract thus made by public officers, acting in a purely fiduciary capacity, is a simple and absolute nullity. The city has no power to act, except through its municipal officers, and when they assume, as its agents, to exercise authority in disregard of prohibitions applying alike to them and their principal, their action is wholly ineffectual, unless it be to subject them to personal liability for assuming powers with which the law has not clothed them. (Irish Eq. R., new series, 19.)

The parties aggrieved have no remedy against the corporation. They were employed in contravention of the policy and terms of the statute, and they cannot invoke the aid of the courts to enforce an unlawful agreement. They could not contract with the city, except through its authorized agents, and they are chargeable in law with notice of the limitations of official authority imposed by general laws. (Fairtitle v. Gilbert, 2 Durn. East, 169; Hodges v. City of Buffalo, 2 Denio, 110, 112; Brady v. Mayor of New York, 2 Bosw., 173, 183; S.C. affirmed, 20 N.Y., 312; Appleby v. Mayor of New York, 15 How., 428; Supervisors of Rensselaer v. Bates, 17 N.Y., 242;Smith v. Mayor of New York, 4 Sandf., 227; S.C. affirmed, 6 Seld., 508.)

The decision of the Supreme Court should be reversed, with judgment for the defendant on the demurrer. *Page 294

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