Bell v. Mayor

• Decision Date: 22 March 1887
• Citation: 11 N.E. 495,105 N.Y. 139
• Parties: BELL v. MAYOR, ETC., OF NEW YORK and others.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 139

11 N.E. 495

BELL

v.MAYOR, ETC., OF NEW YORK and others.

Court of Appeals of New York.

March 22, 1887.

Appeal from judgment of the general term of the court of common pleas of the city and county of New York.

D. J. Dean, for appellants.

Joseph Fettretch, for respondent.

PECKHAM, J.

This action is brought against the defendant, the mayor, etc., to foreclose a lien upon certain moneys alleged to be in the hands of the comptroller of the city of New York for the purpose of paying the amount due on a contract between the defendant Vanderbilt and the defendants Surland and others, who were trustees of public schools in the Twelfth ward of the city of New York, whereby Vanderbilt was to do the mason work on a building to be erected for school purposes in such ward. The other defendants were lienors who filed their claims upon the same moneys. The plaintiff and the other lienors were individuals who furnished the materials to Vanderbilt to enable him to complete his contract above referred to, and such materials went into the construction of the school-house.

Upon the view taken by us in this case, the only question in it arises upon the construction of the act (chapter 315, Laws 1878) entitled ‘An act to secure the payment of laborers, mechanics, merchants, traders, and persons furnishing materials towards the performing of any public work in the cities of the state of New York.’ It is conceded, if that act apply to this case, the judgment herein is right. Prior to its passage there was no law by which any lien could attach upon public buildings, or upon the moneys due from a city to the contractor who did any work thereon. The courts had held that such great inconvenience might result from the sale of public buildings to satisfy a lien that express and clear provisions of the statute must be shown to permit it. Darlington v. Mayor, etc., 31 N. Y. 164;Poillon v. Mayor, etc., 47 N. Y. 666;Leonard v. City of Brooklyn, 71 N. Y. 498. To give some security to those who furnished supplies, or did work for the contractor on public works in cities, this act was passed.

The counsel for the city challenges this contract as not being made with an incorporated city, as required by the provisions of the act; for he says that the school trustees who signed it were part of the educational system of the state, and did not represent the city or act in its behalf; and he cites the well-known cases of Dannat v. Mayor, etc., 66 N. Y. 585, and Ham v. Mayor, etc., 70 N. Y. 459, and several others of like nature, to prove the correctness of his position.

The Dannat Case was where the contractor to do the carpenter work on a school-house in New York bought lumber of plaintiff, and gave him an order on the board of public instruction for his payment when the next installment under his contract should become due, and the order was presented to and left with the board. After the next installment became due, the plaintiff presented his claim to the comptroller, and demanded its adjustment by him, which he neglected to make, and also refused to pay the amount of the order. This court held that the system of audits and payments of accounts provided by the act of 1873, reorganizing the government of New York, applied to all payments from the city treasury, including payments from school moneys upon contracts of the board of education, and that the act of 1851, relating to the common schools of the city remained in force. Thus, to obtain payment upon a contract with the board of education, it was necessary for the board to give its draft on the chamberlain as prescribed in the act of 1851, and this was to be delivered by the payee to the finance department as its voucher, and the other requisites of the act of 1873 were to be complied with before the payment could be secured. This was not done in that case, and consequently the plaintiff was not successful in his action. The case is cited to show the separate and independent character of the board of education, and that it drew its own drafts, and had its own system outside of the city government.

The Ham Case was that of an action brought against the city to recover damages for injuries alleged by the plaintiff to have been sustained by him to his property in a certain house because of the alleged negligent acts of some of the employes of the department of public instruction. The liability was sought to be placed upon the doctrine of respondeat superior, which rests upon the right of the employer to select his servants and to discharge them, and, while in his service, to direct and control them. All this was held to be lacking in that case, and that the department of public instruction, although formally constituted a part of the city government by the law as it stood in 1871, (subsequently and in 1873 altered,) yet it was charged with the performance of duties, not local or corporate, but relating and belonging to an administrative branch of the state government, and that such board had exclusive...