Littlefield-Alger Signal Co. v. Nassau County, LITTLEFIELD-ALGER

• Decision Date: 03 June 1964
• Docket Number: LITTLEFIELD-ALGER
• Citation: 43 Misc.2d 239,250 N.Y.S.2d 730
• Parties: SIGNAL CO., Inc., Plaintiff, v. COUNTY OF NASSAU, Defendant.
• Court: New York Supreme Court

Page 730

250 N.Y.S.2d 730

43 Misc.2d 239

LITTLEFIELD-ALGER SIGNAL CO., Inc., Plaintiff, v. COUNTY OF NASSAU, Defendant.

Supreme Court, Special Term, Nassau County, Part I.

June 3, 1964.

James G. Blake, Garden City, for plaintiff; John Chamberlain, Garden City, of counsel.

Jack B. Weinstein, County Attorney of Nassau County, Mineola, for defendant; David Schechter, William D. Siegel, Mineola, of counsel.

WILLIAM R. BRENNAN, Jr., J.

By stipulation of the parties, there are now pending (1) the defendant's motion (CPLR Rule 3211[a], par. 7) to dismiss the third, fourth, fifth, sixth, seventh and eighth causes of action pleaded in the complaint, and (2) the plaintiff's cross-motion for summary judgment. Issue has not yet been joined in the action; and although the plaintiff has submitted voluminous papers in opposition to the motion and in support of its cross-motion, the defendant has not submitted any evidence in either connection (cf. CPLR Rule 3211, subd. [c]).

The third, fifth and seventh causes of action purport to plead a breach of the same contract. The allegations incorporated in all of said causes of action are that 'plaintiff and defendant entered into a contract on or about August 8, 1962, whereby plaintiff agreed to maintain all traffic signal devices in the area covered by the Nassau County Police Department for and on behalf of defendant for a period of one year commencing on or about August 1, 1962'; that the contract was awarded to plaintiff as low bidder, and that the plaintiff performed thereunder until April 11, 1963, when it was instructed to cease all work under the contract. The third cause of action seeks the balance due for maintenance work actually completed to April 11, 1963; the fifth seeks the alleged contract price for so-called 'time and material jobs' completed thereunder; and the seventh seeks general damages for breach of contract.

The attack on these causes of action (which simply plead different items of damage for a single breach of contract) rests on Section 2206 of the County Government Law of Nassau County, Laws 1954, c. 545 which provides that 'All contracts except for the purchase of supplies, materials and equipment shall be made and executed by the county executive.'

By legislative fiat, the contract in this case was required to be in a writing executed by the designated official. The plaintiff was bound to know the requirements for a valid contract (cf. Brown v. Mt. Vernon Housing Authority, 279 App.Div. 794, 109 N.Y.S.2d 392). However fully minds may have met, however complete their agreements as to every term and condition, the parties could only be bound by a formal written contract executed by the county executive (Belmar Contracting Co. v. State of New York, 233 N.Y. 189, 194, 135 N.E. 240, 241; Blatt Bowling Corp. v. State of N. Y., 14 A.D.2d 144, 217 N.Y.S.2d 766). This is the basis for any contractual liability of the County in this case and none of its officers could impose upon it a contractual obligation except in the manner prescribed (id.).

Since there can be no contractual liability in the absence of a contract so executed, it is essential to the statement of a valid cause of action in contract that the plaintiff allege compliance with the statute. This it has not done. The failure to plead the condition precedent as to which plaintiff has the burden of both pleading and proof is fatal. (Marriott v. State of New York, 196 Misc. 454, 56 N.Y.S.2d 584). The motion to dismiss is granted as to the third, fifth and seventh causes of action.

The plaintiff seeks leave to replead. Such leave is denied. No where in the affidavits and papers submitted by it does it appear that the county executive did in fact execute the contract relied upon by the defendant. It would be futile to grant leave to replead a cause of action for breach of contract based on the unexecuted contract.

Both parties have treated the fourth cause of action as seeking to recover the reasonable value of maintenance work done and materials supplied under the alleged contract pleaded in the third cause of action although the contract itself is not repleaded in the fourth cause. It will be so considered (Frear v. Sweet, 118 N.Y. 454, 457, 458, 23 N.E. 910, 911; Helfhat v. Whitehouse, 258 N.Y. 274, 278, 179 N.E. 493, 495). The sixth cause of action asks the reasonable value of the time and material jobs under the contract pleaded in the third cause of action. Obviously, what the plaintiff seeks is to recover upon an implied contract for the value of its actual performance under the abortive contract. Since all claims for work, labor and services rendered and materials furnished should be pleaded in one cause of action, the motion to dismiss the fourth and sixth causes will be granted with leave to replead a single cause of action.

The County forcefully urges that its acceptance of benefits under the ineffective contract does not render it liable for the reasonable value of materials furnished or services rendered in purported performance thereof. A consideration of the authorities it relies upon requires that the facts in the case at bar be kept in focus.

The papers before the court are clear that the proposed contract was within the powers of the County. The contract was the subject of a proposal duly submitted for public bidding. The plaintiff was the low bidder. Its bid complied with all patent formal requirements preliminary thereto. The contract was formally awarded to the plaintiff by a 'Notice of Award' dated August 2, 1962, and the plaintiff was notified to complete the procedures leading to and culminating in the contract insofar as those procedures related to plaintiff. The plaintiff did so--it submitted documents and itself signed the final contract form. It started work referable to the contract, rendered bills thereunder, and actually received two payments in December, 1962, applicable solely to work under the contract. The Police Department in early 1963 notified all commands that the plaintiff was responsible for maintenance and repair of traffic signal lights and control equipment under the purported contract specifically identified by number. The State Department of Labor communicated with plaintiff to notify it of the need to file certain papers in connection with the said contract awarded to plaintiff. The County, so far as appears, was satisfied with the plaintiff's performance until it terminated further performance.

In brief, the proposed contract was not ultra vires, it was the product of competitive bidding duly had, it was properly awarded, and the plaintiff did everything required of it to produce a formal contract. Only the proper execution by the county executive as the next step was missing.

In North River Electric Light & Power Co. v. City of New York, 48 App.Div. 14, 62 N.Y.S. 726, the only objection of the comptroller of the defendant to paying bills for lighting services actually rendered was that no written contract had been entered into between the plaintiff and the defendant. The court stated (48 App.Div. at pp. 19, 20, 62 N.Y.S. at p. 729); 'The precise question we are called upon to determine is whether the failure to make a written contract between the parties hereto is fatal to the plaintiff's right to recover * * *'; and it stated that it 'would imply that all the requirements leading up to a valid contract had been complied with except the reduction of the same to writing, and its formal execution.'

Indicating that it might be inclined to hold that a contract had actually been entered into, the court said (48 App.Div. at page 21, 62 N.Y.S. at page 730):

'Regard being had to the fact that the only objection made is that the contract was not in writing, it would appear that all the necessary preliminary steps essential to a binding contract had been taken, and thus all the evils were avoided which the statute was intended to guard against; such as favoritism in awarding contracts without obtaining bids. Hence the failure to execute a written contract would not be fatal to the plaintiff's right to recover. Paul v. City of New York (Sup.; Dec. 8, 1899) , 61 N.Y.Supp. 570. If, however, that is not so, we are still of opinion that upon the conceded facts, the city is liable to pay for the light furnished.'

However, the court proceeded to grant judgment for the plaintiff on the theory of implied contract, citing many cases holding that a municipality, having legal power to contract for a thing, may be bound by an implied contract in the same manner as an individual or a private corporation. (See cases cited in 48 App.Div. at page 24, 62 N.Y.S. at page 732.)

In Moore v. Mayor, 73 N.Y. 238, at 246 and 248, the court took cognizance of the occasional...