PRACTICE REPORTS.

NEW YORK COMMON PLEAS.

EDWARD SMITH, appellant agt. THE MAYOR, &c., of New York, respondents.

1. No member or committee of the common council of New York can make any contract, or enter into any obligation binding the corporation, unless the authority to do so has been distinctly conferred, or the act is subsequently ratified by an ordinance, act or resolution adopted in the manner prescribed by law.

2. The common council, however, may enter into any contract or obligation within the scope of its legislative authority, unless by the charter the matter of such contracts is exclusively within the jurisdiction of one of the executive departments. 3. The limitation upon the power of the common council to make contracts imposed by the ninth and twenty-third sections of the amended charter of 1849, (Laws of 1849, p. 278,) applies only to those contracts relating to matters exclusively committed to the executive departments.

4. The employment of coaches by members of the common council, while engaged in matters appertaining to their legislative duties, is neither embraced within the business of any one of the departments, nor an executive act. It is within the powers of the common council to make contracts of that nature.

5. The thirty-eighth section of the charter of 1857, does not militate against this construction. The contracts referred to in the last mentioned section are those which would admit of being contracted for by sealed proposals, upon a public notice of ten days.

6. The hiring of a coach by a member of the common council, when the necessity arises for doing so, is a contract which, from its very nature, was never intended to be embraced under a regulation requiring sealed proposals and ten days public notice, before the contract can be made.

7. The passage of a resolution by the common council, directing payment of a bill for carriage hire previously contracted by individual members of it, is equivalent to an original authority, and the obligation thus recognized and entered into is binding upon the corporation.

General Term, (before three judges,) January 1861. APPEAL from a dismissal by Mr. Justice HILTON, of the plaintiff's complaint, at trial.

Smith agt. Mayor, &c., of New York.

The plaintiff brought his action to recover $491.56 for carriage hire, incurred by divers members of the defendants' common council in the necessary performance of their official duties-$317 of which was incurred before the first day of June, 1856, and the remainder, viz., $104.50, was incurred after the passage of the charter of 1857.

To sustain his case, the plaintiff proved the performance of the work; that it was done at the request of some aldermen and councilmen, who were examined, and testified that the carriages were necessary for them in the performance of their official duties as members of divers committees, and in two cases to enable them to attend meetings of the board, they suffering on account of sickness.

The plaintiff also showed, that in the appropriation bills were contained divers appropriations for county and common council contingencies, and showed, or offered to show, that for a series of years carriage hire had been paid under those heads. He showed, also, an appropriation in the general acts for such uses and purposes.

The plaintiff also introduced in evidence several resolutions of the common council, directing payment of such carriage hire as the members would incur in the discharge of their official duties, not exceeding $100 per annum for each member, which he proved were passed both before and after the date of these charges in suit; and it appeared that the claims in suit did not exceed $100 per annum for each member. The plaintiff also offered to prove that he had supplied carriages to members of the common council before this bill, and had been paid therefor.

The plaintiff also proved that $104.50 of his account was created after the passage of the charter of 1857.

After hearing plaintiff's counsel the court dismissed the complaint on the following grounds, viz:

A person dealing or contracting with the corporation of the city of New York must be presumed to do so with reference to the charter, and with a full knowledge of the

NEW YORK PRACTICE REPORTS.

Smith agt. Mayor, &c., of New York.

SCHOOL

3 LIBRARY.

powers of the officers of the corporation with whom he deals or contracts.

The plaintiff has failed to show any contract made by the corporation for rendering the services for which compensation is claimed, in the manner required by the charter.

The corporation can only contract in the manner pointed out by the charter, and by which its legislative power is vested in the boards of aldermen and councilmen, and its executive powers in the mayor and heads of departments.

Neither of the members of the board of aldermen or councilmen, at whose request these services were rendered, was an executive officer authorized to contract so as to bind the corporation; but, on the contrary, are expressly prohibited by the charter from performing any executive duty whatever.

To entitle the plaintiff to recover, he must show that he rendered the service upon a contract made with the corporation, and as none such has been shown, the complaint must be dismissed.

Complaint dismissed.

D. MCMAHON, for appellant.

R. F. ANDREWS, for corporation.

By the court, DALY, F. J. The claim in this action was for the hire of carriages furnished to members of the common council in the years 1855-6-7. The carriages were used by the members while engaged in discharging the duties of committees, upon which they were appointed, except in two instances, when they were used to transport members disabled by gout and rheumatism, to and from the sittings of their respective boards. In June, 1856, a resolution was adopted by the mayor and common council, directing the comptroller to pay such bills as should be thereafter incurred for carriage hire, by members of the common council, when necessary for the furtherance of the

Smith agt. Mayor, &c., of New York.

business of the corporation, provided each bill should contain the name of the party, and that no one should exceed one hundred dollars per annum; and a resolution was also adopted on the 26th day of December, 1856, directing the comptroller to pay all bills incurred in the years 1856-7 for the hire of carriages used by the members in the discharge of official duties, provided the bills did not exceed in the aggregate one hundred dollars per year for each

member.

I think the plaintiff was entitled to recover, at least, for the carriages supplied in the years 1856-7. No resolution appears to have been adopted in respect to the year 1855. In the preceding year, that is, on the 22d of April, 1854, the comptroller was directed to pay all necessary bills incurred by members of committees of either board, for carriage hire, while on official business; but this did not by its terms embrace bills that might thereafter be incurred. A resolution was adopted in 1842, that no charge for carriage hire should thereafter be allowed, unless incurred by a member, or a committee, in the performance of official duty; but this could scarcely be construed as a general authority thereafter to members to employ carriages, while so engaged, without the direction, or ratification and approval of the common council. That it has not been so regarded by the common council appears by the specific authority conferred by resolution upon the comptroller to pay such bills as had been, or might be incurred in the years 1854-6-7. No member or committee of the common council can make any contract, or enter into any obligation binding the corporation, unless the authority to do so has been distinctly conferred, or the act is subsequently ratified by an ordinance, act or resolution, adopted in the manner prescribed by law. (Amended charter of 1830, §13; of 1849, §§ 1, 4, 6, 9; of 1857, § 11.) And as the common council had conferred no authority upon its members to engage carriages during the year 1855, or ratified their act