Kramrath v. City of Albany

• Decision Date: 06 October 1891
• Citation: 127 N.Y. 575,28 N.E. 400
• Parties: KRAMRATH v. CITY OF ALBANY.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 575

28 N.E. 400

KRAMRATH

v.CITY OF ALBANY.

Court of Appeals of New York,

Second Division.

Oct. 6, 1891.

Appeal by defendant from a judgment of the general term of the third judicial department, which affirmed a judgment of the county court of Albany county. Affirmed.

Action for goods sold and delivered to the defendant. On February 10, 1886, the city-hall in Albany was destroyed by fire. On February 12th the common council of the city passed the following resolution, which was duly approved by the mayor: ‘Resolved, that the name of the city building be, and the same hereby is, changed to ‘City-Hall and City Building;’ that the committee on public buildings and parks be, and is hereby, authorized and directed to set apart and fit up rooms for the use of city officers who have been left without any office room by reason of the destruction of the city-hall by fire; and that said committee also fit up a common council chamber in said building for meetings of the board of aldermen.' The committee on public buildings and parks consisted of five members, two of whom were John Zimmerman and John T. Gorman. The city officers who had been left without any office room, by reason of the destruction of the city-hall by fire, were the mayor, chamberlain, receiver of taxes, city surveyor, and board of health. In the necessary fitting up of rooms in the city building for said city officers, the plaintiff sold and delivered to and furnished and performed work and labor for the defendant to the amount and of the value of $242.98. The trial court found as facts that the committee on public buildings and parks set apart and ordered to be fitted up in the city building the rooms for the use of the city officers in which the work was performed by the plaintiff and the materials furnished by him were used; that the sale, delivery, furnishing, and performance of the work were all and each made and done by direction of said committee, and pursuant to the resolution above set forth; and that the common council had duly ratified and confirmed the acts pursuant to which the plaintiff's claim was contracted. Judgment having been entered for the plaintiff, and affirmed at the general term, leave was granted to appeal to this court.

D. Cady Herrick, for appellant.

Edward J. Meegan, for respondent.

BROWN, J., ( after stating the facts.)

The facts found by the learned trial court fully sustain the judgment in this action. The fourth finding, that ‘the committee on public buildings set apart and ordered to be fitted up in the city building rooms for the use of said officers,’ was not excepted to, and is conclusive upon this court in our consideration of the case. We need not inquire, therefore, whether it had evidence to support it or not. The power delegated to the committee by the resolution of the common council was ‘to set apart and fit up rooms for the use of city officers who had been left without any office room by reason of the destruction of the city-hall by fire.’ The officers who had thus been deprived of their offices were specified in the fourth finding, to which, as already stated, there is no exception. It thus appears without dispute that the committee did the very thing it was empowered to do, unless some distinction is to be made between the fact that the committee was by the resolution directed to ‘fit up the room,’ and the finding is that it ‘ordered the room to be fitted up.’ But the learned counsel for the appellant makes no such distinction. His claim is that the committee never met or acted together, and that the plaintiff sold the goods on the order of Zimmerman and Gorman, and that their action was individual, and not by authority of the committee. But we must accept the finding of the trial court, which is that the committee gave the order. This assumes join action.

The question of the defendant's liability becomes, therefore, one of corporate power. We are not referred to any provision of the charter of the city which limits the power to make such purchases as are involved in the plaintiff's claim, or any which provides that such contracts shall be made in a particular manner. The section which declares it unlawful for any member or members of the common council, whether a committee or otherwise, to make any disbursement of corporate moneys, or incur any expense in behalf of the city, unless previously ordered by the common council, etc., was a limitation upon the action of committees and individual aldermen. It did not curtail or affect the power of the common council. Bank v. City of Albany, 92 N. Y. 363.

But the appellant's claim is that the authority given to the committee was one calling for the exercise of judgment and...