Titusville Iron Co. v. City of New York

• Decision Date: 31 December 1912
• Citation: 207 N.Y. 203,100 N.E. 806
• Parties: TITUSVILLE IRON CO. v. CITY OF NEW YORK et al.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 203

100 N.E. 806

TITUSVILLE IRON CO.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

Dec. 31, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Titusville Iron Company against the City of New York and others. From a judgment of the Appellate Division (144 App. Div. 893,128 N. Y. Supp. 1147) affirming a judgment of nonsuit at the Trial Term, plaintiff appeals. Reversed, and new trial granted as to one party.George W. Alger, of New York City, for appellant.

Archibald R. Watson, Corp. Counsel, and Geo. W. Olvany, both of New York City (Terence Farley, of New York City, of counsel), for respondents.

CULLEN, C. J.

On January 27, 1906, one Hillman entered into a contract with the defendant board of education to furnish and install a heating and ventilating apparatus in a public school. Subsequently the plaintiff sold and delivered to Hillman certain boilers, castings, and other parts of a heating apparatus which Hillman intended to use in the performance of his contract, but, so far as appears in the evidence, were not installed in the building, nor delivered to or accepted by the board of education . The plaintiff was never paid by Hillman for the property. In June following proceedings in involuntary bankruptcy were commenced against Hillman, and on the 18th of that month a receiver of his estate was appointed by the United States District Court. On July 9th Hillman was adjudicated a bankrupt. Meanwhile, on the 27th of June, the board of education declared Hillman's contract forfeited under the following provision contained therein: ‘If the work to be done under this contract shall be abandoned by the contractor, or if this contract shall be assigned, or the work sublet by him, otherwise than as herein specified, or if the contractor shall at any time refuse or neglect to supply a sufficiency of workmen and materials of the proper skill and quality, or shall fail in any respect to prosecute the work required by this contract with promptness and diligence, or shall omit to fulfill any provision herein contained, or if at any time the superintendent of school buildings shall be of the opinion and shall so certify in writing to the committee on buildings, that the performance of the contract is unnecessarily or unreasonably delayed, or that the contractor is willfully violating any of the conditions or covenants of this contract or specifications, or is executing the same in bad faith, or not in accordance with the terms thereof, or if the work be not fully completed within the time named in the contract for its completion, the committee on buildings shall notify the contractor to discontinue all work, or any part thereof, under this contract, by written notice, signed on behalf of said committee by its chairman or acting chairman, to be served upon the contractor either personally or by leaving said notice at his place of residence or business, or with his agent in charge of the work, or with an employé found on the work, and thereupon the contractor shall discontinue the work or such part thereof, and the board of education shall thereupon have the power to contract for the completion of the contract in the manner prescribed by law, or to place such and so many persons as it may deem advisable, by contract or otherwise, to work at and complete the work herein described, or such part thereof, and to use such materials as he may find upon the line of the work and to procure the material for the completion, so as to fully execute the same in every respect, and the cost and expense thereof at the reasonable market rates shall be a charge against the contractor, who shall pay to the party of the first part the excess thereof, if any, over and above the unpaid balance of the amount to be paid under this contract; and the contractor shall have no claim or demand to such unpaid balance, or by reason of the nonpayment thereof to him and shall forfeit all claim to any moneys retained; and no molds, models, centres, scaffolding, planks, horses, derricks, tackle, implements, power plants, or building material of any kind belonging to or used by the contractor shall be removed so long as the same may be wanted for the work.’

It also directed the superintendent to proceed with the completion of the work in accordance with the original plans and specifications, and advertised for proposals therefor. On August 11th the receiver of the bankrupt notified the board of education that he claimed the boilers and property heretofore mentioned, and on September 6th, in pursuance of an order made by the United States District Court, the receiver sold all his right and title to the plaintiff. On August 20th the board of education entered into a contract with the defendant Olvany for the performance of the Hillman contract, and in such performance that defendant, with the consent and at the instigation of the board of education, appropriated the boilers and other property of Hillman and installed them in the school building. For this conversion the plaintiff his sued the defendants.

[1] In no aspect of the case did the plaintiff prove any liabilityon the part of the city of New York. It took no part in the transactions of which the plaintiff complains. The board of education is a corporation separate and distinct from the city of New York. Charter, § 1062; Gunnison v. Bd. of Education of N. Y., 176 N. Y. 11, 68 N. E. 106. No relation of principal and agent exists between the two, and the city was not liable for the torts of the board. Ham v. Mayor, etc., of N. Y., 70 N. Y. 459. The judgment in favor of the city must therefore be affirmed, with costs.

[2] It is urged that the board of education is not liable for the torts of its subordinates. It is unnecessary to consider that question. The evidence shows that the board of education, as such, participated in the appropriation of the property claimed by the plaintiff, and for such act, if wrongful, the board was subject to suit. Wahrman v. Bd. of Education of N. Y., 187 N. Y. 331, 80 N. E. 192,116 Am. St. Rep . 609,10 Ann. Cas. 405.

This brings us to the consideration of the respective claims of title to the property. The plaintiff had no lien on the property for the unpaid purchase money, but at the time of the appointment of the receiver title to the property was in Hillman . It then became vested in the receiver of the bankrupt and through the sale by the receiver passed to the plaintiff unless, under the provisions of the contract with Hillman, already quoted, the board of education had the right to appropriate the property. For one reason at least the judgment below cannot be sustained. Referring to the contract, it is to be observed that where a contractor makes default it is provided that ‘the committee of buildings shall notify the contractor to discontinue all work, or any part thereof, * * * by a written notice, signed on behalf of said committee by its chairman,’ to be served on the contractor in the manner specified, and thereupon the board of education shall have power to contract for the completion of the contract, ‘and to use such materials as they may find on the line of the work.’ The service of the notice on the contractor is made, by the contract, a condition precedent to the right to forfeit the contract and appropriate the materials of the contractor. The complaint was dismissed at the close of the plaintiff's case. There was no evidence that such a notice was ever served. We are unwilling, however, to dispose of the case on this narrow ground, as on the record before us, even had the notice been served, still the act of the board would have been wrongful.

[3] At the time of the execution of the contract Hillman had no title to the property, the subject of this suit, nor does it appear even that the property was then in existence. Therefore he could create no lien thereon cognizable at law, whether by way of mortgage, pledge, or otherwise. ‘It is common learning in the law that a man cannot grant or charge that which he hath not.’ See Thomas on Chattel Mortgages, § 157; Jones on Chattel Mortgages, § 138.

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