Schwan v. . City of New York

Gray, J. The complaint shows that the action was upon a contract, made with the village of Arverne-by-the-Sea, to recover the sum due thereunder for sprinkling the streets from May 1st to October 31st, 1898 ; that the village was a municipal corporation of the county of Queens, which became merged with the city of New York; that the plaintiff fully performed the work called" for by the agreement and that payment therefor liad been refused. When the case came on for trial, the plaintiff’s counsel repeated, in his opening, the facts of the complaint and he stated that the village was one of the municipalities consolidated with the city of New York by the provisions of “ Greater New York Charter ;” that the board of trustees of the village had duly authorized the contract sued upon; that they had ample funds at the time to meet the contract, which, upon the consolidation, were, with uncollected tax levies, transferred to the defendant; that, pursuant to section 10 of the Greater New York charter, the board of trustees, in 1897, prepared a budget for the year 1898, “ which included the contract and levied taxes accordingly.” ITpon this opening, the defendant moved for a dis *35 missal of the complaint, upon the ground that the trustees had no right to make the contract, the performance of which extended beyond their fixed terms. This motion was granted and the plaintiff excepted. The judgment dismissing the complaint has been affirmed, upon the authority of Hendrickson v. City of. New York, (160 N. Y. 144). The charter of this defendant, of which courts must take judicial notice, as a public law, as by direction of section 1620, provided, ■ in the tenth section, that the proper authorities of the various consolidated municipal corporations should prepare in the year 1897 a budget for the year 1898 and levy taxes accordingly, as though consolidation were not to be effected. The section further provided that the funds received by the chamberlain of the city of New York should be apportioned by the board of estimate and apportionment to the various city departments, “ so that such funds shall be used as nearly as may be, for the object for which they were raised, ” etc. Under the dismissal of the complaint, upon the motion that was made before any evidence was introduced, all the material facts alleged in the complaint, and stated for proof in counsel’s opening, must be deemed to have been admitted. Therefore, two material facts must be true, viz.: First, that, pursuant to the Greater New York charter, a budget had been prepared by. the proper authorities of the village, which included the contract in question, and that taxes had been accordingly levied, and, second, that the contract had been fully performed, with defendant’s knowledge. The case is, thus, differentiated from that of Hendrichson, (supra), where the action of the Jamaica town board was held, upon the evidence, not to have been taken in good faith, in making a street lighting contract, to be performed in ten years, upon the eve of the termination of its official existence. Furthermore, the provisions of section 10 of the charter were not brought in question. If what the board of trustees had done was in good faith and within the provisions of the Greater New York charter, no reason is apparent why plaintiff should not be entitled to be paid for his work; especially if the *36 moneys had been appropriated and received by defendant for the' purpose. I think, therefore, that the plaintiff should have been allowed to try his case and to prove, if he could, that the contract sued upon had been, in good faith, made and included in the budget for the year 1898 ;• that the taxes, required under the budget, had been levied for 1898 and that the work called for by the contract had been fully performed. Upon these grounds I advise a reversal of the judgment and the ordering of a new trial, with costs to abide the event.