Phelps v. City of New York

• Decision Date: 15 January 1889
• Citation: 19 N.E. 408,112 N.Y. 216
• Parties: PHELPS v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 216

19 N.E. 408

PHELPS

v.CITY OF NEW YORK.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Plaintiff Anne B. Phelps recovered a judgment against the city of New York for money paid by her for an assessment which the special term held to have been illegal and void. From an order of the general term reversing that judgment, and ordering a new trial, plaintiff appeals.

David D. Acker, for appellant.

D. J. Dean, for respondent.

GRAY, J.

If the ordinance of the board of aldermen, under which the work of regulating, grading, and paving Broadway was done, appeared on its face to be contrary to the law, and therefore to be void, this action to recover back the moneys paid by plaintiff should fail. This appears to be substantially conceded, as a proposition, by plaintiff's counsel, where, under his second point, that the payment was not voluntary, he says, ‘As a matter of law, the assessment being valid on its face, the payment was not voluntary.’ As a matter of fact, the payment of the assessment in question was effected by the mortgagee of the property, who, upon making the mortgage loan, deducted its amount from the moneys payable to the plaintiff, and satisfied the lien of record. This fact, of course, frees the case from the element of a payment under duress of person or of goods, through the coercive action of the municipal authorities. The issue before the trial court was as to the legality of the assessment with respect to the ordering of the work, and the manner of its performance; and upon that point proof was had. The resolution or ordinance under which the work was done provided for ‘the same to be done in such manner as the said commissioner may deem expedient and for the best interests of the city and of the property owners.’

It appears that the commissioner of public works, who was referred to, contracted in writing with one Tracy for the performance of the work at the price of upwards of $140,000; and it also appears that this contract was not made after any public advertisement for bids. But, for the purposes of this case, the sole question which we shall consider is whether this ordinance, on its face, carried notice of the illegality of the corporate act; not whether matters of proof de hors the record wise established the invalidity of the assessment. If the ordinance was on its face void, then the plaintiff cannot plead her ignorance of the law in justification of the payment. The principle is elementary that a party cannot recover back moneys paid, upon the ground that he supposed he was bound in law to pay it. The ordinance delegates to the commissioner of public works a discretion in the performance of the work which it orders done; for it reads that it is ‘to be done in such manner as the said commissioner shall deem expedient,’ etc. In Re Bank, 75 N. Y. 388, this court held that where an aggregate expenditure of more than $1,000 was involved in the completion of any particular work for the corporation, the same must be by contract, to be awarded to the lowest bidder, after advertisement for sealed proposals, unless otherwise ordered by a vote of three-fourths of the members elected to the common council. This was deemed an imperative requirement of the law, under the provisions of section 91 of the Laws of 1873; and as its provisions were embodied in the consolidation act of 1882, (section 64,) they are equally imperative here. In the case cited, Judge RAPALLO said, with respect to words in the ordinance precisely similar to those quoted from this record, and which were there claimed to authorize the commissioner of public works to do the work without contract: ‘Assuming that the power intended to be given to the commissioner by this clause related to the manner of employing the persons to do the work, and to the purchase of the supplies necessary therefor, and not merely to the mode in which the work should be performed, we think that it was ineffectual to dispense with the provisions of the charter requiring advertisement for sealed proposals, and a contract with the lowest bidder. The law confers upon the common council the power and duty of deciding in each particular case whether those provisions shall be dispensed with, and requires a vote of three-fourths of all the members elected to accomplish that purpose. This is eminently a discretionary power, which cannot be delegated. It is their judgment which the law requires, and not that of any officer they may designate. There is no provision in the law itself authorizing them to delegate this power, and the case falls within the...