Opinion
December Term, 1903.
Chase Mellen, for the appellant.
Thomas Gilleran, for the respondents.
There is no serious dispute as to the facts and our conclusion must turn upon the determination of a clean-cut question of law. It appears that the purchases here, though exceeding in the aggregate $1,000, were made at different times, and at no time did any of the orders given for supplies reach that figure. The purchases, therefore, in each instance being for less than $1,000, might be sustained if the provisions of the charter relating to the purchase of articles of supply for a less sum than $1,000 were complied with. The language of the charter (Laws of 1897, chap. 378, § 419) is that "no expenditure for work or supplies involving an amount for which no contract is required (not exceeding $1,000) shall be made except the necessity therefor be certified to by the head of the appropriate department." This requirement, the defendant claims, was not met, in that there was a failure here to procure the certificate of the fire commissioner showing the necessity for the many orders given to the plaintiffs by the purchasing agent of the department for the work and materials furnished and for the value of which the plaintiffs seek to recover. There is no question as to the honesty and good faith of the plaintiffs in furnishing the supplies, nor of the purchasing agent in selecting these plaintiffs to fill the orders. They were given, it would seem, in pursuance of a course of dealing which had grown up in the department under which the purchasing agent upon receiving requisitions from the different engine houses undertook, after he had concluded that the articles requested were necessary, to himself procure them.
Upon similar facts it has frequently been urged, as it is in this case, that the city having had the supplies, should be required in all honesty to pay for them; and that, although no recovery could be had upon the theory of an express contract, the claim should be supported on the ground of an implied liability on the part of the city. This contention, however, as we shall show from the cases, cannot be sustained either in principle or upon authority.
The principal legal question presented, therefore, is whether the failure to prove that the fire commissioner certified to the necessity for the purchases is a bar to the plaintiff's right to recover. This question we do not regard as a new one, and, without an extended discussion, think that a reference to what has been decided where cognate questions have been presented is controlling as against the plaintiffs' right to recover. We do not by this intend to state that the precise question here involved has been passed upon; but that a review of the authorities shows that in every case there must be a full compliance with the charter provisions in order to charge the city with liability. It has been repeatedly held that municipal and other public bodies can act only in the way prescribed in their charters or acts of incorporation. ( Parr v. Village of Greenbush, 72 N.Y. 463; Francis v. City of Troy, 74 id. 338; Matter of Emigrant Industrial Savings Bank, 75 id. 388; Smith v. City of Newburgh, 77 id. 130; People ex rel. J.B. Lyon Co. v. McDonough, 173 id. 181.)
Among the earlier cases involving the liability of the city of New York is that of Donovan v. Mayor ( 33 N.Y. 291), wherein there was a similar failure on the part of the plaintiff to prove that a necessity for the work had been certified to by the head of the appropriate department, and it was said: "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." In the case at bar the sum needed was in fact appropriated; but the same principle is involved, the evidence showing that there was not, with respect to each purchase made, a certificate of necessity, as required by the charter, given by the head of the department.
In the case also of McDonald v. Mayor ( 68 N.Y. 23) it was said: "It is fundamental that those seeking to deal with a municipal corporation through its officials, must take great care to learn the nature and extent of their power and authority;" and therein it was held (head note): "Where the municipal charter prohibits its officers from contracting on its behalf for the purchase of materials, save in cases and in a manner specified, the municipality is neither liable upon a contract made by an official in violation of, or without a compliance with, the requirements of the charter, nor can the value of materials furnished under the contract be recovered upon any implied liability."
This latter holding disposes of the contention made that the city having used the articles, though not furnished in compliance with the law, can be compelled to pay for them, not upon the theory of an express, but upon the ground of an implied liability.
The principles enunciated in the McDonald Case ( supra) were fully stated and adopted by this court in Walton v. Mayor ( 26 App. Div. 76). Although in the latter case the question was whether the provisions of the Consolidation Act (Laws of 1882, chap. 410, § 64, as amd. by Laws of 1893, chap. 327) in reference to contracts involving the expenditure of more than $1,000 was complied with, the discussion therein proceeds upon the same lines, and, in principle, that case is controlling upon the legal question which is now presented for our determination.
The plaintiffs here failed to show that the head of the department had certified to the necessity for the purchases made; and the purchasing agent, although he says he consulted with the commissioner, concedes that he ordered the goods in many instances personally by written order or verbally over the telephone. This was not a compliance with the charter requirements, and, furthermore, it appears that the paper mentioned by the purchasing agent as prescribing his powers says, with respect to purchasing supplies: "He shall thereupon prepare a requisition for the supplies required for the succeeding quarter year, submitting the same to the Commissioner for approval before purchasing." It was incumbent upon the plaintiffs to furnish goods only upon an actual compliance with the charter provisions in order to fasten liability upon the city. The evidence failing to show that there was such a compliance, it follows that the judgment directed in plaintiffs' favor must be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.