158 N.Y. 274, Weston v. City of Syracuse

Citation:158 N.Y. 274
Party Name:JOHN WESTON, as Surviving Partner, Respondent, v. THE CITY OF SYRACUSE, Appellant.
Case Date:February 28, 1899
Court:New York Court of Appeals
 
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158 N.Y. 274

JOHN WESTON, as Surviving Partner, Respondent,

v.

THE CITY OF SYRACUSE, Appellant.

New York Court of Appeal

February 28, 1899

Argued January 13, 1899.

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COUNSEL

Charles E. Ide for appellant. The attempted modification of the contract by the common counsel was unauthorized, and their act in that regard ultra vires; and furnished no excuse for the non-performance of the contract according to the plans and specifications. (L. 1885, ch. 26, § § 139, 155, 156; L. 1888, ch. 449; L. 1889, ch. 475; Bond v. Mayor, etc., 19 N. J. Eq. 376; Dillon v. City of Syracuse, 29 N.Y. S. R. 912; People v. Bd. of Imp., 43 N.Y. 227; Dickinson v. Poughkeepsie, 75 N.Y. 65; Shaw v. Trenton, 49 N. J. L. 339;

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Nash v. St. Paul, 11 Minn. 174.)The failure to obtain the requisite certificate of the engineer was fatal to a recovery. (People ex rel. v. Mayor, etc., 65 Hun, 321; 144 N.Y. 63; Dillon v. City of Syracuse, 29 N.Y. S. R. 912; Tone v. Mayor, etc., 70 N.Y. 157.) The action was prematurely brought in that the amount of the contract price had not been assessed and collected. (Hunt v. City of Utica, 18 N.Y. 442; People ex rel. v. Mayor, etc., 65 Hun, 321; 144 N.Y. 63; 1 Dillon on Mun. Corp. [ 4th ed.] § 483; Town of Tipton v. Jones, 77 Ind. 307; People ex rel. v. Bd. of Police, 107 N.Y. 239.) The exclusion of the evidence offered by defendant to show that the passage of the resolution of July twenty-ninth was procured by bribery and fraud was error and the exceptions to such exclusion were well taken. (1 Dillon on Mun. Corp. [ 4th ed.] § § 311, 312.)

George H. Sears for respondent. The court properly denied the defendant's motion, made at the close of plaintiff's evidence, and at the close of the case, for a nonsuit for the reason stated, 'That the plaintiff cannot recover in this case at this time upon the ground that it has not been shown that the contract price of the sewer had been assessed and collected from the property owners along the line of the improvement.' (Reilly v. City of Albany, 112 N.Y. 30; Lyon v. District of Columbia, 20 D. C. 484; Smith v. City of Buffalo, 44 Hun, 156; C. Nat. Bank v. City of Portland, 33 P. 532; Cumming v. Mayor, etc., 11 Paige, 596; Sage v. City of Brooklyn, 89 N.Y. 189; McCormack v. City of Brooklyn, 108 N.Y. 49; People ex rel. v. Chapin, 103 N.Y. 635; People ex rel. v. Fairman, 91 N.Y. 385; People ex rel. v. Barnes, 114 N.Y. 317.) The contention of counsel that the defendant's common council had no power or authority to pass the resolution of July twenty-ninth modifying the contract, and the objections that were subsequently interposed in the case on this ground are not well founded in fact or law. (Schreyer v. Mayor, etc., 7 J. & S. 1; McKyring v. Bull, 16 N.Y. 297; Paige v. Willet, 38 N.Y. 28;

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Goodwin v. M. M. Ins. Co., 73 N.Y. 496; 13 Abb. [N. C.] 388; Valton v. N. F. L. Assur. Co., 20 N.Y. 35; Pom. on Rem. § 708; L. 1885, ch. 26, § § 30, 138, 148; Moore v. City of Albany, 98 N.Y. 405; Meech v. City of Buffalo, 29 N.Y. 198; Voght v. City of Buffalo, 133 N.Y. 463; Fitzgerald v. Walker, 55 Ark. 148; Kingsley v. City of Brooklyn, 78 N.Y. 200.) Defendant is estopped from setting up the defense of non-performance. (Dillon v. City of Syracuse, 29 N.Y. S. R. 612; Brady v. Mayor, etc., 44 N.Y. S. R. 623; D. & H. C. Co. v. P. C. Co., 50 N.Y. 264; Mulholland v. Mayor, etc., 113 N.Y. 631; Kingsley v. City of Brooklyn, 78 N.Y. 200; Riley v. City of Brooklyn, 46 N.Y. 446; Cartwright v. Village of Mt. Vernon, 21 N.Y. S. R. 611.) There can be no force in the objection that the resolution of July 29, 1890, was procured by bribery, and the offers of the defendant to give evidence of bribery were properly denied. (Devlin v. Mayor, etc., 4 Misc. Rep. 106; Dillon on Mun. Corp. § 313; Jonas v. Loving, 55 Miss. 109; Pain v. Boston, 124 Mass. 486; Freeport v. Marks, 59 Penn. St. 257; Baker v. State, 27 Ind. 485.)

PARKER, Ch. J.

On this review it must be taken as established by the verdict of the jury that the plaintiffs substantially performed their contract with the defendant, except as to the construction of the first 1, 453 feet of the sewer, the work upon which was done prior to the investigation by the common council. That investigation resulted in a resolution waiving performance so far as the work done was not in conformity with the plans and specifications, and modifying the contract to the extent that it should be in conformity with the work already done. The trial court decided that the resolution of July 29, 1890, effected that result. The appellant concedes that such was the purpose of the common council, but nevertheless insists that it was beyond the power of that body to waive performance of any of the requirements of the contract or specifications, and that in holding otherwise error was committed.

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The result of our examination of the charter of the city of Syracuse leads us to the conclusion that it does not place any limitations upon the powers of the common council in respect to such acts as the common council undertook to perform by means of the resolution in question. Aside from certain limitations that we need not specify, all details are left to the common council, and not made the basis of the consent of the property owners. The modification attempted, therefore, was within the power of the common council under the ruling of this court in Meech v. City of Buffalo (29 N.Y. 198); Moore v. City of Albany (98 N.Y. 396); and Voght v. City of Buffalo (133 N.Y. 463).

The appellant next contends that the failure to obtain the certificate of the engineer entitled the defendant to a dismissal of the complaint. We think the certificate obtained was in compliance with the contract as modified by the resolution of July 29, 1890. The engineer could not certify that the work was performed in accordance with the original contract and specifications, because such was not the fact, but he did certify in effect that the work done after the 29th day of July, 1890, was in accordance with the contract and specifications, while the work done prior to that date was in conformity with the resolution adopted by the common council, by which an attempt was made to modify the contract. It was, in effect, therefore, a certificate that the work had been performed in accordance with the original contract as modified by the resolution of July 29, 1890, and...

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