MAYOR, Aldermen and Commonalty of the City OF NEW YORK et al., Appts., Impleaded with Alexander R. Fordyce et al., Respts.

1. Prior to the passage of the Act to secure the payment of laborers, etc., and persons furnishing materials toward the performing of any public work in the cities of the State of New York, chapter 315, Laws of 1878, there was no law by which any lien could attach upon public buildings or upon the moneys due from a city to the contractor who did any work thereon.

2. The object of this Act is to give security to those who furnished supplies or did work for the contractor on public works in cities.

3. A contract between a person and the trustees of public schools in a ward of the City of New York, to do the mason work on a building to be erected for school purposes in such ward on a lot belonging to the city, is one made with said city, within the meaning of said Act.

4. Individuals who furnished materials

APPEAL from a judgment of the General Term of the Court of Common Pleas of New York City, affirming a judgment entered upon report of a referee in favor of plaintiff, lienor, and such of the defendants as were also lienors, in an action to enforce a lien on certain moneys appropriated for the erection of a school building. Affirmed.

The facts and questions raised appear from the opinion.

Mr. David J. Dean, for appellants:

That the board of education and school trustees constitute an agency for the administration of public duty not pertaining to the corporate functions of the City, but administered in behalf of the people of the State; and that the board is therefore independent, capable of making its own contracts, liable to be called upon to respond to the liabilities which it incurs, has been repeatedly adjudged.

Ham v. Mayor, 70 N. Y. 459; Miller v. Mayor, 3 Hun, 35; Treadwell v. Mayor, 1 Daly 123; Gildersleeve v. Board of Education, 17 Abb. 201; Bell v. Vanderbilt, 67 How. Pr. 332.

It is, therefore, plain that when the notices in question were filed in 1880, they were void of effect, and the claimants acquired no lien thereunder, because the contract in question was not made with "an incorporated city."

The Amendment of 1881, incorporated into the Act of 1878, has no retroactive effect, but speaks only from the time of its enactment, and has no effect upon rights or remedies accruing prior to that time.

Ely v. Holton, 15 N. Y. 595; People v. Carnal, 6 N. Y. 463; Benton v. Wickwire, 54 N. Y. 226.

The notices filed in 1880 are insufficient to fulfill the requirements of the statute. It is required thereby that such notices shall be filed with a department or bureau of the city government. The board of education is not a department or bureau of the city government.

Ham v. Mayor, 70 N. Y. 459; Dannat v. Mayor, 66 N. Y. 585.

6. It is not necessary that such school trustees should be a formal part of the city government, in order to act substantially and for the purpose of this Act as the agents of the city legally appointed, and as such executing such contract on behalf of the city.

7. The board of education was the department or bureau having charge of the work, and the comptroller of the city was the financial officer thereof; and a filing of a notice of the lien with the clerk of the board and with the comptroller was a fulfillment of the provisions of the second section of the Act.

(Decided March 22, 1886.)

quire a lien. This argument is, however, no answer to the claim of the appellant: that the respondent may not acquire a lien by the filing of a notice with the board of education. "It is not the office of the court to supply the defects of the law, or amend it by construction, or supply its functions."

McCluskey v. Cromwell, 11 N. Y. 593; Benton v. Wickwire, 54 N. Y. 226; Roberts v. Fowler, 3 E. D. Smith, 632; Mushlitt v. Silverman, 50 N.Y. 360.

The requisition of the board of education in the contractor's favor created a claim against the treasurer which could be enforced by mandamus or by action.

People v. Comptroller, 77 N. Y. 45; Dannat v. Mayor, 66 N. Y. 585.

The City paid the money before the passage of the Act which gave the appellants a right to a lien; and the City thus acquired a right to be free from any other claim or demand in respect thereto. The amendatory Act of 1881 will

City, in regard to a public work the title to which was in an incorporated city, and was to be paid for by the moneys in its treasury, raised by taxation and disbursed by its own officers? The exact and literal wording of an Act may sometimes be rejected if, upon a survey of the whole Act and the purpose to be accomplished or the wrong to be remedied, it is plain that such exact or literal rendering of the words would not carry out the legislative intent. And the title of an Act may be regarded also for the same purpose of arriving at the real meaning of the Legislature. Smith v. People, 47 N. Y. 330; People v. Davenport, 91 N. Y. 574.

By the title the purpose of this Act is evident and would include just such a case as is now before us. And while, if the legislative meaning in the words used by it in the body of the Act were plain and free from any ambiguity, those words would control the title, yet such is not the case here.

The section speaks of a contract between a person and an incorporated city. Can it be contended that a lawful agent of the city could not make a contract in its behalf, within the scope of his authority and within the meaning of this section, although not in so many words using the corporate title of the city in the contract? And cannot an individual or even a body corporate be an agent of the City under this Act and to carry out its object, and yet for all other purposes be a separate and distinct entity?

The question is, What is a contract between one person and an incorporated city, within the meaning of this Act?

Is the answer so absolutely free from doubt as to preclude the reference to the title or the manifest purpose of the Act, and the condition of the subject before its passage? It is thought

not.

It is seen that before its passage persons in the situation of the plaintiff had no lien upon buildings or moneys due or to grow due under the contract. The lien existed in all cases except in regard to public works. The reason for including such a contract as this is plainly just as strong as if the trustees of the school board had been a formal part of the city government. We think it was not necessary that they should be such formal part in order to act, substantially and for the purpose of this Act, as the agents of the city, legally appointed, and as such executing this contract on behalf of the City.

was in this case no head of a city department or bureau in which to file a notice of claim under the second section of the Act in question, because the board of education or the trustees of public schools of the twelfth ward formed no such department or bureau of the city government within the cases above cited. But having so construed the first section of the Act as to include a case of this kind, and holding that a contract such as this was a contract substantially and for the purpose of the Act, with an incorporated city, there is no difficulty in holding that for the same purpose the board of education was the department or bureau having charge of the work, and the comptroller of the City was the financial officer thereof, and that a filing of the notice of lien with the clerk of the board and with the comptroller was a fulfillment of the provision of that section of the Act.

Coming to these conclusions, it becomes unnecessary to consider the effect of the passage of the Act of 1881 or the giving of the bond of indemnity to the comptroller.

The judgment of the Common Pleas should be affirmed, with costs. All concur.

MAYOR, Aldermen and Commonalty of the City OF NEW YORK, Respt.,

1.

2.

C.

Nathaniel SANDS, Appt.

Statutes containing grants of power should be so construed as to include the authority to do all things necessary to make the object of the grant effectual and to enable the donee of the power to accomplish the expressed purpose of the Act."

As incident to the duties imposed upon the comptroller of the City of New York by chapter 323 of Laws of 1871, in reference to the creation and issuing of "consolidated stock of the County of New York," he was impliedly authorized to contract with defendant for assistance in negotiating the loan and placing bonds on terms advantageous to the county, and was authorized to pay for such services a reasonable commission out of the premium realized on the bonds.

Hence, defendant having received by indorsement from the comptroller a check received by the comptroller in payment of a part of the premium on county bonds issued under said Act and negotiated by defendant, in payment of his services, is not liable to the county for the amount of such check, on the ground that such payment by the comptroller was in violation of chapter 590, Laws of 1857, and chapter 190, Laws of 1870, which require that all moneys drawn from the treasury by authority of the board of supervisors should be upon certain prescribed vouchers. These provisions were not applicable to the case.

4. The fact that defendant was, at the time

of performing said service in placing the | county loan, a tax commissioner of the City, did not bring him within the provision of section 115 of chapter 137 of Laws of 1870, prohibiting city officers from being interested in any contract or business the consideration for which was to be paid from the city treasury. It was competent for a city officer to render services to the county, and to charge and receive compensation therefor.

(Decided April 19, 1887.)

APPEAL from a judgment of the Supreme PPEAL from a judgment of the Supreme

partment, affirming a judgment of the Circuit on a verdict directed for plaintiff in an action to recover the value of a certain check alleged to have been misappropriated by a public officer and delivered to defendant. Reversed.

Reported below, 39 Hun, 519. The facts and questions raised appear from the opinion.

Messrs. Luther R. Marsh and Aaron J. Vanderpoel, for appellant:

The transaction complained of was a county transaction. The stock negotiated by Sands for sale was county stock. The money which Sands received for his successful negotiation, the $75,000, was for services rendered to the county. This is evidenced by the receipt given for such money from Belmont & Co.

The City of New York and the County of New York were, at that time, 1871, distinct and independent corporations in fact as well as in

name.

People v. Ingersoll, 58 N. Y. 1, 25.

In 1874 the Consolidation Act was passed. Chap. 904 of the Laws of 1874.

If the two were one before, there was no necessity for the Act of union.

The defendant was not an officer of the County of New York, and had the same right to deal with it as any private citizen. The of fice the defendant held, 'Commissioner of Taxes and Assessments for the City and County of New York," was a city and not a county office.

Y.

Mayor v. Muzzy, 33 Mich. 61; Jackson v. N. Cent. R. R. Co. 2 Thomp. & C. 653; affd. N. Y. 623; McDonald v. Mayor, 32 Hun. 89; McAdam v. Mayor, 36 Hun, 340.

58

Certain statutes were relied on at the trial, as prohibiting the defendant from receiving the money paid him.

Section 110 of the city charter of 1870 (Sess. Laws, 1870, p. 393) does not apply for several reasons. 1. It is obvious that this section only prohibits any payment, in addition to the salary, for any services pertaining to the office. 2. The money paid to the defendant did not come from the "corporation or city treasury." It came from the County of New York.

Section 115 of the city charter has no application for the same reason.

Section 2 of chapter 57, Laws of 1843, is also inapplicable: 1. A city officer is not prevented by the mere fact of being a city officer from being interested in a contract made by him with a county, or other city or the State. 2. Here defendant had no interest in the purchase or in the sale. He had a mere compensation for service, and this service was not made by him in the discharge of his official duty. The duties of tax commissioner of the City, and the service of negotiating the sale of county bonds, were entirely distinct and unconnected.

Section 5 of chapter 583, Laws of 1872 does not apply: 1. The defendant is not seeking to hold the county liable for any indebtedness. The transaction was one in præsenti. The service was rendered and the payment made at the same time. 2. The presumption of law is that all acts of a public officer are legally done, until the contrary is proved.

Sistare v. Best, 88 N. Y. 534.

The comptroller had power, in his discretion, to make the contract with the defendant for the negotiation of the bonds: 1. Such power was conferred on him by the Act itself, for it was a necessary incident to carrying out the purposes of the Act. 2. The board of apportionment gave the comptroller this power.

The defendant, then, being a city officer, and not a county one, was under no obligation to the county, either statutory or otherwise.

As an officer of the city he owed no duty to the county. He was as much at liberty to engage to render services to the County of New York for a compensation to be paid by it, as to any county of the State.

The subsequent merger of the county into the City, or vice versa, cannot retroact upon a transaction occurring three years before the

upon it.

It is an action for fraud and deceit. That is the gist of the action; no other ground is alleged, nor, indeed, is any fact alleged, which, if true, would show a fraud. It is the allegagation of a mere conclusion.

The plaintiff cannot abandon the fraud, and recover as on a contract for money had and received.

Ransom v. Wetmore, 39 Barb. 104; Whitcomb v. Hungerford, 42 Barb. 177; Saltus v. Genin, 3 Bosw. 250; Place v. Minster, 65 N. Y. 89,

102.

Mr. Charles P. Miller, for respondent: Irrespective of the validity or invalidity of the agreement between Connolly and the defendant, the payment of the check to the defendant was illegal and void, and he obtained no title to it by such payment. Proof establishing the illegal payment justified the allegations of fraud in the complaint.

Supervisors of Richmond Co. v. Ellis, 59 N.

Y. 620; Supervisors of Richmond Co. v. Van Clief, 1 Hun, 454; People v. Fields, 58 N. Y. 504, 505.

This check for $75,000, when received by the comptroller in payment for county stock became the property of the county. The comptroller's duty was to deposit the check forthwith in the treasury, according to law, from which it could be taken only by authority of the board of supervisors acting in conformity with the statute.

People v. Ingersoll, 58 N. Y. 27.

The defendant, irrespective of his position as a public officer, is chargeable with knowledge of the illegality of the comptroller's conduct.

McDonald v. Mayor, 68 N. Y. 23; Supervisors of Richmond Co. v. Ellis and Supervisors of Richmond Co. v. Van Clief, supra.

The statements in the complaint that the money was paid and received willfully and corruptly, with intent to cheat and defraud, can be disregarded, and the action maintained as an action for moneys unlawfully paid and received, or as an action for wrongful conversion. People v. Fields, 58 N. Y. 504, 505. The pretended agreement between the defendant and Connolly was illegal and void by statutes prohibiting such contracts.

The defendant admits that he was a tax commissioner. He was therefore a city officer. People v. Raymond, 37 N. Y. 428.

By sections 110, 115 of the Charter of 1870, Laws 1870, chap. 137, the defendant was prohibited from receiving, directly or indirectly, from the city treasury any compensation for any services other than those which he performed as a commissioner of taxes, no matter how great an advantage the City might derive from such other services.

Roosevelt v. Draper, 23 N. Y. 318; Mullaly v. Mayor, 3 Hun, 661; S. C. affirmed in 62 N. Y. 636; McAdam v. Mayor, 36 Hun, 340.

There is yet another statute prohibiting the alleged contract.

1 R. S. 7th ed. p. 858. See Smith v. Albany, 61 N. Y. 444.

The resolution of the board of apportionment does not validate the comptroller's employment of the defendant.

The powers of the board of apportionment were fixed by law. It had no authority to validate an invalid contract of employment. Laws 1870, chap. 137, § 101, as amended by Laws 1871, chap. 574, § 8.

The pretended contract between the defendant and Connolly was illegal and void at common law. Sands was a public officer, an agent of the people, toward whom he stood in the position of a trustee. No rule is better settled than that which forbids a trustee to make any profit out of his trusteeship, other than what he is expressly allowed by law.

Smith v. Albany, 61 N. Y. 444; Mullaly v. Mayor, 3 Hun, 661; Collier v. Munn, 41 N. Y.

143.

The contract being illegal and void, Sand's receipt of the $75,000 was illegal and a fraud upon the county, and the plaintiff has a right to recover it.

The defendant, having moved for a nonsuit and made no request to go to the jury, cannot now claim that there were any questions of fact to be passed upon by the jury.

Ruger, Ch. J., delivered the opinion of the court:

This action was commenced about the year 1873, in the name of the Board of Supervisors of the County of New York to recover from the defendant the value of a certain check alleged to have been misappropriated by the Comptroller of New York and delivered to the defendant.

It was further alleged in the complaint that one Connolly was comptroller and the defendant commissioner of taxes for said city, and that Connolly, having received the check in question for the use and benefit of the county, willfully and corruptly, and with intent to cheat and defraud the county, indorsed and transferred it to the defendant, who wrongfully converted it to his own use, with like intent and purpose, and that after demand duly made upon said defendant for the same he neglected and refused to repay the moneys received thereon to the plaintiff.

The defendant, answering, denied all of the allegations of the complaint except those specifically admitted, and after admitting the official character of himself and Connolly and the receipt of the check, alleged that the same was duly indorsed and delivered to him by Connolly, in payment for services rendered to Connolly, as comptroller, in effecting a loan of money for the City and County of New York under a contract previously made between them.

The complaint did not allege any want of power in Connolly to make such contract, or to transfer the check, or any illegality in its delivery to defendant except such as might be inferred from the charge that it was corruptly and fraudulently done.

After the passage of chapter 904, of the Laws of 1874, consolidating the government of the City and County of New York, the Mayor and Commonalty of the City were substituted as plaintiff in the place of the board of supervisors.

On the trial a verdict was directed by the trial court for the plaintiff; but the grounds of the decision do not appear in the record. The defendant duly excepted to the ruling of the court. The general term affirmed the judgment, upon the ground that the act of the comptroller, in paying out the check, was contrary to the provisions of chapter 590 of the Laws of 1857, and chapter 190, of the Laws of 1870, which required that all moneys drawn from the treasury by authority of the board of supervisors should be upon vouchers, examined and allowed by the auditor and approved by the comptroller, and no money should be