Augner v. The Mayor of the City of New York

Ingraham, J.: We have here to determine whether the complaint in this action ■sets forth a cause of action which consists of “ an express or implied ■contract to pay money received or disbursed, or the value of property ■delivered, or of services rendered by, to or for the use of, the defendant or a third person, and thereupon demands judgment for a sum of money only.” (Code Civ. Proc. § 420.) It is difficult to understand' what was meant by the language here quoted. The meaning would be clear if the words “ received or disbursed ” were omitted. Reading the whole section together, however, it would seem as if it was intended to allow a judgment to be taken without application to the ■court in a case where the action was either for the breach of an ■express contract to' pay, absolutely or upon a contingency, a sum or sums of money, fixed by the terms of the contract, or capable of being ascertained therefrom, by computation only, or an express or implied contract to pay money or the value of property 'delivered, or [463] •of services rendered, where the complaint demands judgment for a sum of money only. In such a case the complaint setting forth the cause of action must set forth the facts which show either an express contract, or facts from which the law raises the implication of a contract to pay a definite sum of money. There the defendant has notice of the foundation of the alleged obligation, and the amount ■of money for which the plaintiff asks judgment. By a failure to ■answer such a cause of action the defendant in substance consents to a judgment for the sum of money demanded, and in such a case no application to the court is necessary, for the amount of the judgment cannot exceed the amount specifically demanded in the complaint. Does the complaint in this action allege a cause of action based upon an express or implied contract to pay money ? If it does,' I think the case comes within the section of the Code before cited. The complaint alleges that on or about the 21st day of October, 1895, the plaintiff applied to the board of excise of the city of Hew York for a license permitting him to carry on business upon the premises Ho. 53 First street, and that upon payment by him to the board of excise of the sum of $200 as a license fee, the said license was duly issued to this plaintiff, which, by its terms, expired on the 20th day of October, 1896 ; that pursuant to the provisions of the Liquor Tax Law, this plaintiff is entitled to receive from the defendant the sum of sixty-one dollars, which is a proportionate share of the license fee paid as aforesaid for the unexpired term which the said license had to run after the 30th day of June, 1896, and a judgment was demanded against- the city of Hew York for' the sum'of sixty-one dollars with interest. By section 4 of the Liquor Tax Law (Chap. 112, Laws of 1896) it is provided that “ When- a license is terminated on the thirtieth day of June, eighteen hundred and ninety-six, as above provided, the holder of such license shall be entitled to receive and recover from the town or city in which such licénse was granted, such proportion of the whole license fee paid therefor, as the remainder of the time for which such license would otherwise have run, shall bear to the whole period for which it was granted, and the same shall be paid by such town or city on demand.” The action, therefore, is brought to recover under this provision of the statute a proportionate amount of the sum of money which the plaintiff had paid [464] for a license which had been abrogated by law on the 30th day of June, 1896. In other words, a license having been granted by the State to sell liquor for a certain period,, and the State having abrogated that license before the period had expired, recognizing the justice of the plaintiff’s claim to have refunded to him the. proportionate amount of the license fee paid, where the privilege accorded by the license had been withdrawn, places upon the town or city in which such license was granted the obligation to repay the amount which the plaintiff had paid for his license, but for which he had received no consideration, the license having been abrogated. Is this a cause of action upon an implied contract to pay money received ? It seems to me that there is no doubt but that there would be such an implied contract if the complaint had alleged that the defendant had received for its own use this money so paid' by-the plaintiff for the license. It here appears that by law the board of excise is required to deposit with, and pay over to, the chamberlain of the city of New York all money received for licenses within thirty days after it is received (see chap. 642, Laws of 1874, amending § 2, chap. 175, Laws of 1870), and we can assume that these public officers have done their duty and! obeyed the law. In the case of The People ex rel. Dusenbury v. Speir (77 N. Y. 150), in defining what is an implied contract, it is said: “ There is - a class- of cases where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right and the other. should be subject to a liability similar to the rights and liabilities in certain cases of express contract.” As was said in Moses v. Macferlan (2 Burr. 1008), “ If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt and gimes this action founded in the equity of the plaintiff’s case as it were upon a contract.”. In this case we have the payment by the plaintiff of the license fee; the duty of the board to pay that money, within thirty days .after it was received, to the chamberlain; and a provision of the statute which requires that a proportion of that' money be -paid to the plaintiff by the city of Rew York, Upon that obligation thus created by statute an action is brought. It seems to me that this is clearly an action upon an implied contract;. a contract based [465] upon the obligation of the city of New York to repay to the plaintiff money that it had received but which it was not justly entitled to retain, because the consideration for which it had been paid, viz., the right from the 30th of June until'October 20, 1896, to carry on business under the license granted had been taken away by the Legislature. There is nothing here that imposes upon the city of New York the payment of any sum of money as a penalty. The act itself does not create the liability, but directs the municipal corporation to discharge the obligation which in justice existed against it, to répay to the plaintiff the money that it held of his and for which he had received no consideration. The mere fact that the complaint does not allege that the money was actually received by the defendant does not prevent this obligation to do what is just, imposed on the defendant by the Legislature, from being an obligation in the nature of an implied contract. The Legislature, I think, undoubtedly assumed, in making the city'liable, as we are, I think, entitled to assume upon this appeal, that the board of excise had performed the duty required of it by law, and have paid the money to the chamberlain, who held it as the money of the city to ■ be applied by the city according to law. It is clear that this ruling will carry out the intent of this section of the Code, the sole object of this application being to entitle the plaintiff in those suits to obtain a greater amount of costs against the city of New York than they would be entitled to if the action was one which would have come under the section of the Code above cited; and as the action is within both the letter and spirit of this section, and as the city objects to the application, not to prevent the plaintiff from obtaining a judgment which it can obtain, but simply to prevent the defendants recovering in all those suits costs against the • city on the higher scale provided for in actions which require an application to the court for judgment, I do not see why a strained construction should be given to this section not necessary to fully protect the city, and which would only result in largely increasing-the liability of the city for costs. I think the order appealed from should be affirmed, with ten dollars costs and disbursements. Van Brunt, P. J., and O’Brien, J., concurred; Barrett and Rumsey, JJ., dissented.