Van Dolsen v. Bd. of Educ. of City of New York

• Decision Date: 17 April 1900
• Citation: 162 N.Y. 446,56 N.E. 990
• Parties: VAN DOLSEN v. BOARD OF EDUCATION OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 446

56 N.E. 990

VAN DOLSEN

v.BOARD OF EDUCATION OF CITY OF NEW YORK.

Court of Appeals of New York.

April 17, 1900.

Appeal from supreme court, appellate division, First department.

Action by John Van Dolsen against the board of education of the city of New York to recover on a contract for repair to a school building. From a judgment of the appellate division (51 N. Y. Supp. 720), affirming a judgment for the defendant, plaintiff appeals. Reversed.

Andrew D. Parker, for appellant.

John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for respondent.

LANDON, J.

The plaintiff seeks to recover $600, being the price of a retaining wall on the easterly side of Primary School No. 14, at Nos. 73 and 75 Oliver street, in New York City, erected by plaintiff under a contract in writing made by him with the board of school trustees of the Fourth ward of the city of New York. The complaint alleges, and the answer admits, that the board of trustees made the contract ‘acting for and on behalf of, and for the benefit of, the board of education.’ The consolidation act, in force at the time, by section 1035 provides: ‘It shall be the duty of the trustees for each ward, and they shall have the power, * * * under such general rules and regulations, and subject to such limitations as the board of education may prescribe, to conduct and manage the said schools; to furnish all needful supplies therefor, and to make all needful repairs, alterations, and additions in and to the school premises.’ Section 1029 provides: ‘No contract or contracts shall be made by the school officers of any ward for the purchase of any site without the consent of the board of education, or for the erection or fitting up or repairing of any building, when such repairs shall exceed in amount the sum of two hundred dollars, as authorized in this chapter, until a statement, in writing of the amount required for that purpose shall have been presented to the board of education by said school officers, and together with a copy of the working drawings, plans, and specifications of the work to be done, pursuant to the provisions of this chapter, shall have been duly filed and approved of as herein required, and an appropriation shall have been made by the board of education therefor.’ The defense is that the defendant never made the appropriation specified in section 1029, and that, therefore, the board of trustees had no power to make the contract. The answer admits that when the contract was made ‘the defendant had ample funds for the payment thereof, and that said funds had been duly set aside by the proper authorities of the city of New York for the use of the defendant.’ The answer alleges that the defendant spent all of these funds before the plaintiff demanded payment. A jury trial having been waived, the trial court nonsuited the plaintiff, and dismissed the complaint; the decision stating that it was under the authority of Miller v. Mayor, etc., 3 Hun, 35. On April 7, 1890, the school trustees of the Fourth ward asked the defendant to take the necessary action to protect the school building No. 14, in view of an excavation being made upon the adjoining lot by the owners thereof, and the trustees applied for an appropriation. The superintendent of school buildings thereupon reported to the defendant as follows: ‘Building operations were commenced, and, upon consultation with the trustees, emergency work was approved by me, and, while I am endeavoring to obtain an estimate covering the entire work,-the character of the work may require that it be done by days' work,-would respectfully recommend that the application be laid over, with the emergency work approved, until an agreement can be had as to the price or bills rendered.’ ‘Commissioner Purdy moved that the action of the superintendent be approved, and that the matter of the expense be laid over. Adopted.’ The inference is admissible in favor of the nonsuited plaintiff that the defendant thus directed the work to be done subject to the limitation expressed by it,-that, as the amount of the cost was not then known, the specific appropriation must lie over until it should be known. On the 24th of the same month the board of trustees accepted the proposal of the plaintiff to furnish the materials and erect the retaining wall for $600, and thereupon made the contract with him. The evidence is to the effect that the defendant did all that was necessary to approve and ratify the contract, except that it omitted to make the specific appropriation. The plaintiff could not protect himself against the defendant's exhausting its appropriation by obtaining the indorsement upon his contract by the comptroller, pursuant to section 123 of the consolidation act, the terms of that section not applying to an...