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Opinion of the Court, per PORTER, J.

provision, that nothing therein contained should be "construed to authorize any department or officer of said corporation, or any other person or persons, to incur any expenses for any purposes whatever, to be paid from the city treasury, which are not expressly authorized by law, or exceeding in amount the sums provided for respectively by this act, or by other laws.” (Laws of 1863, p. 310, $ 3.)

The expenditure alleged in the present case belonged to the street department. (1 Laws of 1857, p. 880; $ 23.) As there was neither an appropriation for the work nor a certificate of its necessity by the head of the department, and as it was unauthorized by the common council, the contract was made by the municipal authorities in direct violation of law. A contract thus made by public officers, acting in a purely fiduciary capacity, is a simple and absolute nullity. The city has no power to act, except through its municipal officers, and when they assume, as its agents, to exercise authority in disregard of prohibitions applying alike to them and their principal, their action is wholly ineffectual, unless it be to subject them to personal liability for assuming powers with which the law has not clothed them. (Irish Eq. R., new series, 19.)

The parties aggrieved have no remedy against the corporation. They were employed in contravention of the policy and terms of the statute, and they cannot invoke the aid of the courts to enforce an unlawful agreement. They could not contract with the city, except through its authorized agents, and they are chargeable in law with notice of the limitations of official authority imposed by general laws. (Fuirtitle v. Gilbert, 2 Durn. & East, 169; Hodges v. City of Buffalo, 2 Denio, 110, 112; Brady v. Mayor of New York, 2 Bosw., 173, 183; S. C. affirmed, 20 N. Y., 312; Appleby v. Mayor of New York, 15 How., 428; Supervisors of Rensselaer v. Bates, 17 N. Y., 242; Smith v. ' Mayor of New York, 4 Sandf., 227; S. C. affirmed, 6 Seld., 508.)

The decision of the Supreme Court should be reversed, with judgment for the defendant on the demurrer.

Opinion of the Court, per CAMPBELL, J.

CAMPBELL, J. The action was brought to recover for work and labor on the public roads, and materials furnished for the same, in the months of November and December, 1863. The answer avers that there was an appropriation to defray expenses and repairs of roads and avenues in 1863, amounting to $75,000, but in November and December, 1863, when the work and labor were performed and materials furnished, such appropriation was exhausted. And further, that no appropriation was ever made, covering the expenses of the work alleged to have been done, and that such work was never authorized by the common council; and the necessity for the work was never certified to by the street commissioner. The answer was demurred to, for the reason that it did not state facts sufficient to constitute a defense to the complaint; and on such demurrer the Supreme Court in the first district ordered judgment for the plaintiff.

The answer, in this case, was drawn with reference to the provisions of chapter 446 of the Laws of 1857, being “An act to amend the charter of the city of New York.” That act establishes various executive departments, and defines and regulates the powers and duties of the heads of such departments. In the 22d section, among other things, it is enacted that “no accounts shall be paid on account of any appropriations after the amount authorized to be raised by tax for that specific purpose shall have been expended." By section 23d, the “street commissioner" is declared to be the head of one of these executive departments, and that department, among other things, “shall have cognizance of opening, altering, regulating, grading, flagging, curbing, guttering and lighting streets, roads, places and avenues, of building, repairing and lighting wharves and piers, the construction and repairing of public roads, &c." Section 31 enacts that “annual and occasional appropriations shall be made by proper ordinances of the common council for every branch and object of city expenditure, and no money shall be drawn from the city treasury, except the same shall have been previously appropriated to the purpose for which it is drawn." Section 38 enacts, that in all cases of work to be done, or supplies furnished,

Opinion of the Court, per CAMPBELL, J.

when the amount of expenditure is more than two hundred and fifty dollars, the appropriate heads of departments shall make contracts therefor, and also expressly declaring that “no expenditure for work or supplies, involving an amount for which no contract is required, shall be made except the necessity therefor be certified to by the head of the appropriate department, and the expenditure be as authorized by the common council.”

The plaintiff claims for work and labor on, and materials furnished for, the "public roads" in November and December, 1863. The defendant answers that at that time the original appropriation for repairing roads had been exhausted, and that no appropriation covering the expense of the alleged work was ever made, and the necessity for such work was never certified to by the street commissioner, nor was it ever authorized by the common council. That would seem to be a very plain and direct answer, under the act of 1857, to the plaintiff's claim. If the answer be true, then the plaintiff was employed, and the expenditure made in direct violation of law, and in the very teeth of the statute enacted to protect the city against the wrongful acts of some of its officers.

I think this judgment should be reversed, and judgment ordered for the defendant on the demurrer.

All the judges concurring, the judgment was reversed, with final judginent for the defendant.

Opinion of the Court.

JAMES D. WARNER, Treasurer of Erie County, Respondent,

V. JOSEPH LESSLER et al., Appellant.

Action to foreclose a mortgage executed by defendants to Christian Mentz, Jr., as treasurer of Erie county, to secure the payment of a certain bond conditioned to pay a sum therein named to the obligee or to his successors in office, in trust for certain infants therein named. The complaint contained the necessary averments, showing the plaintiff entitled to maintain the action for forclosure. The answer contained a general denial of the facts set out in the complaint. The issue was referred to a referee who reported that the allegations and facts stated in the complaint were true, except as to the amount claimed to be due, or to become due. The proper reference was again made to ascertain the amount due; and on the coming in, filing and confirmation of the last report, a decree of forclosure was entered, and sale ordered. On appeal therefrom to the General Term, the same was affirmed, and an appeal was taken by the defendants to this court. The appellant submitted no points. .

HELD, that, as the appellant had pointed out no error in the proceedings of the court below, and the only defense set up in the answer was a general denial of the allegations in the complaint, which the referee had found for the plaintiff; and as there appeared to be no error in the proceedings below, this was a proper case for imposing a penalty upon the appellant.

The judgment of the General Term was affirmed with ten per cent penalty.

Statement of case.

Offignabb. 98 9! 2 ) kan tog

GEORGE S. TUCKERMAN, Receiver of N. Y. Central Insur

ance Company, v. Nathan R. Brown.

33 297 120 248

A note given for the purpose of complying with the provisions of the 5th section

of the act of April, 1849, and forming a part of the original capital of the company contemplated by such act, is payable absolutely, without alleging or

proving any loss or assessment by the company, &c. Where such note is given for the purpose of increasing the capital stock of

the company to the amount required by law, that it may pass the necessary examination of the commissioners to be appointed by the comptroller, upon an agreement that, after such examination, such note may be withdrawn and a lesser one be substituted therefor, such transaction and agreement is a fraud upon the law, and the maker of the note will continue to be liable thereou, though such note bo withdrawn and destroyed.

APPEAL from judgment of Supreme Court.

The action was brought by the receiver of the N. Y. Central Insurance Company (a corporation organized in 1851, under the general law of 1849), to recover the amount of a note in the following words:

“$1,400. For value received in policy 407, dated 1st April, 1851, issued by the New York Central Insurance Company, I promise to pay the said company, or their treasurer, for the time being, the sum of $1,400 in such portions and at such time or times as the directors may, agreeably to their charter and by-laws require. Dated April 1st, 1851. (Signed)

NATHAN R. BROWN.” The complaint averred that the note formed part of the capital stock of the company; that the policy therein mentioned was issued to the defendant at or about the date of the note; that the note was assessed by the plaintiff to pay the losses and liabilities of the company to the amount of $535, which amount was demanded personally of the defendant; and that he had neglected to pay said assessment. Judgment was demanded for the amount of the note, with interest.

The answer admitted the making of the note set out in the complaint, but alleged that it was executed and delivered by and in pursuance of a special agreement thereafter stated, and not otherwise.

TIFFANY. - VOL. VI. 38

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