Poillon v. . City of Brooklyn

*134 Danforth, J. Among other powers conferred upon the common council of the city of Brooklyn was one to establish and maintain one or more public baths, as they might “deem necessary” (Laws of 1873, chap. 863, § 13, subd. 5), and in pursuance of this authority they placed a public bath at a pier owned by the plaintiffs, and maintained it for the use of the public during the years 1878, 1879 and 1880. At the expiration of each year the plaintiffs, without success, demanded of the city, through its officers, compensation for the value of the berth, or place occupied by it for the above purpose, and finally in 1882, brought this action for the enforcement of their claim. The use of the pier was not denied, but the defendant by answer averred that the bath was placed there at the plaintiffs’ request, and upon their express agreement that the defendant should not pay and should not be bound to pay to the plaintiffs any sum of money whatever for the use of the pier while so occupied. Upon this issue the jury found against the defendant, and assessing the fair value of the use of the premises while in its possession, found a verdict accordingly. The General Term affirmed the judgment upon the verdict. The learned counsel for the appellant alleges error and rests his contention upon certain provisions of the statute (supra, tit. XVII, §§ 1, 3; tit. II, § 10), declaring that all contracts and agreements by which the city shall be liable to pay money shall be under the control of its common council, but when for work, materials, or improvements, shall be made with the lowest bidder after advertisement (§ 1, supra), and to be invalid unless certified or indorsed by the comptroller to the effect “ that the means required to make the payments under such contract are provided and applicable thereto” (§ 3, supra); and further, that “ no debt or obligation of any kind shall be created by the common council against the city, except by ordinance or resolution specifying the amount and object of such expenditure (§ 10, supra). We think it plain that neither of these provisions have any application to the plaintiffs’ case. The transaction which it involved is not within the letter of the prohibition. The plaintiffs have supplied no *135 “ work, materials or improvements ” to the city, nor do they hold its contract, or any debt or obligation formed by agreement or the meeting of their minds with those of the defendant’s officers. ¡Neither have the latter violated, or failed in compliance with, the provisions of the charter. The express authority conferred by it to establish and maintain the bath carried with it, as a necessary incident, power to designate and procure a proper place for its location. This was done, not by agreement with the plaintiffs, but against their remonstrance and in the exercise of that implied power. They are not the less entitled to compensation, and there is nothing in the statute which relieves the defendant from liability for the use of property which it was authorized to take, or from that obligation to do justice which rests upon artificial as well as natural persons. (Nelson v. Mayor, etc., 63 N. Y. 535, 544.) The cases (McDonald v. Mayor, etc., 68 N. Y. 23; Parr v. Greenbush, 72 id. 463; Dickinson v. Poughkeepsie, 75 id. 65) cited by the appellant are not in conflict with this view. They go no further than to hold that when an express contract, entered into without compliance with the restrictions of a statute, is for that reason void, a recovery for the value of supplies furnished under it cannot be had as upon an implied liability. In the case at bar there was not only no prohibition, but the use of the plaintiffs’ property was incidental to the very thing which the legislature had authorized. A recovery might, therefore, have been had even upon an implied contract to pay what that use was reasonably worth, but it is maintainable also upon the duty of the defendant to make compensation for property taken by its officers against the will of the owners. The judgment should, therefore, be affirmed. All concur. Judgment affirmed.