Moriarty v. City of New York

Greenbaum, T. Upon the ground that emergencies existed requiring three specific items of repairs to be done upon the armories of the Twenty-second regiment and Squadron A, the secretary of the armory board gave written orders to plaintiff to make these repairs. For the recovery of the alleged reasonable value of the repairs and the materials incidentally employed therein this action is brought against the city of Mew York. Plaintiff’s claim is resisted upon the ground that the alleged repairs were not authorized in accordance with the provisions of the Military Code. The maintenance of armories is not one of the duties of a municipal government. To fasten liability upon the city for such expenditures, the provisions of the Military Code, which alone imposes it, must be strictly complied with. Lewis v. City of N. Y., 106 App. Div. 454, 457. The special provisions of the Military Code applicable to the facts in this case are set forth in the Lewis case, supra> at pages 456-458; and it is sufficient for the purposes of the present discussion to state that, “ in case of emergency,” the armory board is not required “ to award contracts to the lowest bidder after advertising,” but “ may cause repairs immediately required to be done without calling for competition, at an expense not exceeding one thousand dollars in any one instance.” The proofs in this case fail to show that the armory board, which alone is authorized to award contracts or to cause repairs to be done, either directed them to be done or had any knowledge that they were done. [206] In the case of one of the three claims made hy the plaintiff, what purports to be the signatures of three members of the armory board appear upon a voucher produced from the comptroller’s office; but the genuineness of the signatures was not even attempted to be proved and, in addition to this, the voucher on its face shows that the amount of seventy dollars and forty cents, the original sum claimed, had been reduced by the claimant to sixty dollars and forty cents. In the case of the other two claims, not even the purported signature of any member of the armory board appears upon any of the vouchers or documents in evidence. The claims of the plaintiff rest upon the action of the secretary of the armory board, who it was shown was its executive officer. What powers were conferred upon this secretary is not disclosed, unless we may regard as evidence of his authority proof that was accepted by the trial justice that the secretary customarily determined what repairs were to be done and issued orders to whomsoever he desired for the making of the repairs. A practical interpretation may he given to a statute of doubtful or ambiguous meaning, in accordance with a uniform construction thereof by public officials for many years; but, where there is not the slightest doubt as to the meaning of an act, the court would be greatly derelict if it recognized a practice that was in violation of the plain provisions of the statute. A practice, such as was testified to, was not of itself evidence of authority by the armory board to the secretary to order the repairs. It may be assumed that the repairs were of an emergent character and, being under a thousand dollars in amount, could properly have been ordered without competition. The courts have not been inclined to favor “ defenses to honest demands based upon mere irregularities and informalities;” and, in meritorious cases, the city has been es-topped from availing itself of its own irregularities in the exercise of its powers, where innocent parties have parted with their property and expended their money in absolute [207] reliance that all legal formalities had been observed. Moore v. Mayor, 73 N. Y. 238, 247. But where the defense goes to the question of power, a different situation is presented than one of mere irregularity. Our attention has not been directed to a scrap of testimony in the case, other than that to which we have adverted as to the custom of the armory board, from which we may infer that the board either knew' of or sanctioned the practice testified to, or had any official knowledge of the work in question, or in any manner approved of or ratified the action of the secretary. Upon such a state of the proofs, there seems to be no alternative but to reverse the judgment. Judgment reversed and new trial ordered, with costs to appellant to abide the event. Gildersleeve, J., concurs.