Hildreth v. City of New York

Full title: PERCY S. HILDRETH, Appellant, v . THE CITY OF NEW YORK, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 6, 1910

138 App. Div. 103 (N.Y. App. Div. 1910)

122 N.Y.S. 1053

Opinion

May 6, 1910.

William D. Leonard, for the appellant.

Theodore Connoly, for the respondent.

Present — INGRAHAM, P.J., McLAUGHLIN, LAUGHLIN and MILLER, JJ.

PER CURIAM:

This case, in principle, cannot be distinguished from Hildreth v. City of New York ( 111 App. Div. 63; affd., 190 N.Y. 513). It is true that the statutes (Greater N.Y. Charter [Laws of 1897, chap. 378], § 455; Laws of 1897, chap. 665) under which the commissioner of highways sought to appoint the plaintiff consulting engineer are slightly different from the statutes (Greater N.Y. Charter [Laws of 1897, chap. 378], § 455; Laws of 1896, chap. 57, as amd. by Laws of 1897, chap. 679) under which the appointment was sought to be made in the case referred to. But this difference in no way destroys the effect of that decision. The fact that the commissioner was empowered and directed to proceed to construct the drive and parkway did not authorize him to enter into a contract with the plaintiff to furnish plans and specifications and take charge of a portion of the work and pay him a compensation based upon a percentage of the cost. It may be that the commissioner had power to appoint the plaintiff as consulting engineer in his department, but if so he had no power to make a contract with him as such consulting engineer to furnish plans and specifications and contracts for the construction of a work not authorized. Such a contract was not fixing the salary of a consulting engineer within the provisions of section 456 of the Greater New York charter. The plans and specifications were never submitted to or approved by the board of estimate and apportionment. Until that had been done, a legal contract could not be made. If, after the plans and specifications were prepared by the plaintiff, the same had been accepted and approved by the board of estimate and apportionment and the drive and parkway constructed thereunder, an entirely different question would be presented.

Whether or not the city is liable to the plaintiff for the services rendered by him in preparing the plans and specifications, we do not pass upon because the question is not before us. All that we decide is that the contract upon which the plaintiff predicates his right to a recovery imposes no legal liability upon the city.

The judgment appealed from, therefore, is affirmed, with costs to the respondent.

PER CURIAM:

Judgment affirmed, with costs.