N. P. Nelson Iron Works, Inc. v. Berry

Sherman, J. The failure to make the mayor a party requires reversal of the order appealed from. Mandamus may not issue to compel the payment of moneys by the city of New York unless the mayor has been accorded an opportunity to be heard, his concurrence in a payment being required by section 149 of the Greater New York Charter. (People ex rel. Rangeley Const. Co., Inc., v. Craig, 197 App. Div. 503, 506; People ex rel. McClinchie v. Prendergast, 140 id. 235, 237.) Other grounds advanced by appellant do not, however, suffice to defeat petitioner’s application. The contract executed by petitioner with the city of New York for the delivery of certain snow loaders was made pursuant to law, after due advertisement, upon sealed bids, and after petitioner had complied with all prerequisite conditions. This contract is dated October 13, 1931, is in all respects valid and has been fully performed on petitioner’s part, so that the city of New York has for a considerable time been in possession of the machines manufactured and delivered to it by petitioner pursuant to that contract. The city has what it purchased and is using the machines but declines to pay for them. These facts stand conceded in the record. After the machines had stood the tests and while they were in the city’s possession, appellant, who now refuses to defray this obligation, inserted a notice in the City Record in April, 1932, stating that the warrant for the sum due to petitioner was ready for delivery to petitioner on April 16, 1932. A demand was then made upon him as comptroller for the delivery of the warrant pursuant to that advertisement. A further document, being a written instrument of guaranty, was required on May 16, 1932, which was thereupon executed and delivered by petitioner. It is undisputed that petitioner has fulfilled every term and condition of the contract on its part to be performed. As stated in Moors v. Mayor (73 N. Y. 238, 248): “ When there has been a bona fide performance of a contract, of which the city has had the benefit, there is a strong equity in favor of the contractor seeking his pay.” As to the claim that payment ought to be withheld because there is no appropriation out of which to pay this obligation, little need be said. Petitioner pleads in its petition that “ the necessary authorization of an appropriation was made” by the Board of Estimate and Apportionment. This is not specifically denied. Appellant proceeded to and did set apart a particular fund to meet these payments out of the moneys appropriated, from which fund he has paid other contractors similarly situated. This is ample proof of recognition of the existence of a fund validly appropriated. Indeed, it is difficult to believe that competitive bids [577] would have been sought from contractors by public advertisement and allowed to ripen into an executed contract committing the city to make payments — all without any appropriation. It is idle for appellant to contend that there was no appropriation when he has by his conduct admitted its existence in assigning a code number to the fund and in making payments therefrom to others who contracted on the faith of the resolution of the board authorizing their contracts and creating this fund. The original resolution of the board of estimate and apportionment, dated December 12, 1929, called for the issuance of revenue bonds to defray the cost of contracts for snow removal and payrolls incidental to the removal of snow during the winter season of 1929 and 1930. Evidently this fund was not put to that use, for, in June, 1931, the board of estimate and apportionment, upon the application of the chairman of the sanitary commission for a “ reauthorization ” of special revenue bonds for snow purposes, adopted an amendatory resolution in which the proposed purchase of the thirty snow loaders was specifically set forth. The earlier resolution was then amended to authorize this, as well as other purchases out of this fund. This procedure appears to have been in accord with established practice and was clearly within the powers of the board of estimate and apportionment. Under that resolution, the city advertised for bidders for the contract, accepted petitioner’s bid, has received and retained the machines, is using them and, as appears from the undisputed evidence, must have intended to pay for that equipment, in as much as appellant actually prepared the pay warrant for delivery to petitioner and notified him to call for it by a public announcement inserted in the City Record. Another reason for this non-payment is also urged. The affidavit of .the deputy comptroller, verified July 14, 1932, refers to an annexed exhibit which when examined appears to be an unsigned news article clipped from an unnamed publication, which is mentioned as having come to appellant’s notice in May, 1932. Upon this anonymous item, which states that large commissions have been paid to an individual upon the sale of the snow loaders, appellant relies to defeat petitioner’s right to compensation. It is supported in no respect; no sworn fact is set forth. This newspaper clipping should be treated as no more, really, than mere gossip. Yet appellant claims that it, standing alone, presents an issue which would warrant the denial of this application. Of course, it has no probative value, although it be accompanied by argumentative statements contained in the affidavit of the deputy [578] comptroller set forth by way of excuse for raising the defense of a lack of a proper appropriation. If the appellant proposed to show the invalidity of petitioner’s claim, section 149 of the Greater New York Charter confers adequate power. It contains the following: “The comptroller may require any person presenting for settlement an account or claim for any cause whatever, against the corporation, to be sworn before him or before either of the deputy comptrollers, touching such account or claim, and when so sworn, to answer orally as to any facts relative to the justness of such account or claim. Wilful false swearing before the comptroller or deputy comptrollers is perjury and punishable as such.” This court is alert to protect the city against fraudulent claims, upon proof being presented. It may not, however, be led to the denial of relief to which a party is prima fade entitled when no more is presented than an anonymous news item in lieu of that orderly proof which is required of every litigant. Upon the record before us, marked as it is by an absence of proper averments necessary to create an issue of fact, no defense to petitioner’s claim upon the merits was set out. (People ex rel. Treat v. Coler, 56 App. Div. 459; affd., 166 N. Y. 144.) The order appealed from should be reversed, with twenty dollars costs and disbursements, and the application for a peremptory order of mandamus denied, with fifty dollars costs. Finch, P. J., and Merrell, J., concur; McAvoy, J., taking no part.