Durkin v. City of New York

49 Misc. 114, 96 N.Y.S. 1059

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1905
• Status: Published

Opinion

Scott, J.

The plaintiff sues as assignee of Harry Martin, whose claim arises as follows: On December 17, 1903, the ■deputy commissioner of docks signed and delivered to Martin a paper, partly written and partly printed, in the following form (the written portions being italicized) :

“ Department oe Docks and Ferries

“ Pier A. North River.

“ New York, December 17, 1903.

“ To Harry Martin Please deliver as directed 60 days ■use of horse cart and driver at the price agreed upon, viz: $3.50 per day. I hereby certify to the Comptroller of the City of New York the necessity of the work or supplies named in the within Department Order, and that the' expenditure therefor has been duly authorized.

Order No. 22106. Jackson Wallace,

"Deputy Commissioner of Docks.”

On January 6, 1904, before Martin had offered to do any work under the foregoing order, the secretary of the department signed and caused to be served on Martin a paper in the following form:

“ January 6, 1904. Henry Martin Esq. 177 Seventh Avenue, City. Sir: You will please return at once to this •office Order No. 22106 for 60 days use of horse, cart and driver. Yours respectfully, Charles J. Collins, Secretary.”

On January 8, 1904, and for several days thereafter, Martin presented himself with his cart and horse and-offered to go to work, but was not permitted to do so; and, on October 5,1904, assigned to plaintiff a claim against defendant for sixty days’ use of horse, cart and driver at three dollars and a half per day, and all claims against defendant •for breach of said contract. The plaintiff’s claim is that the •document signed by the deputy commissioner of docks on December 17, 1903, constituted a valid, binding contract between Martin and the city, whereby Martin was entitled •to be employed for the term of sixty days at the agreed rate per day. A careful examination of the document does not bear out this contention. In the first place, the request to Martin is to deliver the use of the horse, cart and driver “ as directed,” clearly implying that, before his employment became effective, there was to be some direction to go to work; for there is nothing to show or indicate that there had been any direction given before the signing of the order, or contemporaneously therewith. Furthermore, no specified period of sixty days is indicated, nor is there anything to show that Martin is expected to work for sixty days con'secutively. Clearly Martin did not understand that the sixty days covered by the order began to run at once; for, while the order was dated on December seventeenth, he did not present himself for employment under it until January eighth, three weeks after the order was signed. And, finally, if the papelean be seriously regarded as a contract at all, it is unilateral and devoid of consideration. If it may be assumed that the city, by the terms of the order, agreed to employ Martin, he agreed to nothing. If, during the period of sixty days after the signing of the order, the city required Martin’s services, and, meanwhile, the price of horses, carts and drivers had risen, and Martin had refused to work for less than four dollars and a half per day, and no one could be found to work for less, it is quite evident he was not so bound to work for three dollars and a half a day that the city could have recovered damages from him by reason of his refusal. The document lacked nearly every essential element of a contract, and was, at the most, merely a permit or proposal to Martin to work, and an agreement' that, if he was directed to work and did work, he should be compensated at the rate of three dollars and a half per day. Being of this character, it was subject to recall by the city at any time and, most certainly, before Martin had performed or tendered performance -of work under it; and the letter of the secretary, delivered on January sixth, was an effective and complete revocation.

Judgment múst be affirmed, with costs.

Bisghoff and MaoLean, JJ., concur.

Judgment affirmed, with costs.