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Arguments for Appellants.

p. 99.)

IV. The “street department” have the cognizance of lighting the streets, wharves, &c., and “a bureau of lamps and gas” is created within that department, and the duties of the chief of that bureau are prescribed by ordinance. (Amended Charter of 1857, $ 23; Revised Ordinances of 1859, ch. 4, art. 1, § 2, p. 79; id., art. 9, $ 2,

The supply of gas or other materials for lighting the streets is within the province of the street department, and contracts for such supply are to be made by the street commissioner. (Amended Charter of 1857, § 38; Valentine's Laws, p. 278.)

A violation or evasion of this provision is a misdemeanor. (Id., $ 40.)

The common council could not, directly or indirectly, contract for the supply, nor by any act of theirs lay the foundation of an implied promise to pay for lighting the streets, , except as they might direct and control the street commissioner. (Farmers' Loan and Trust Company v. The Mayor, &c., of New York, 4 Bosw., 80.)

Notice to the corporation,” that is, notice to the “mayor, aldermen and commonalty,” how served or to whom given does not appear, was not notice to the head of the “street department,” who was charged by law with the supervision of lighting the streets.

Notice to the common council, and their omission to take "final action” upon the subject, could not raise an implied assumpsit against the city, as the subject was not, any more than providing a pier for the deposit of offal was, within their province.

V. The supply of gas for the lamps within the district mentioned, is within the provisions of the thirty-eighth section of the amended charter of 1857, and could only be furnished upon contract made as prescribed in that section. (Valentine's Laws, p. 278.)

1. It was a “supply needful for a particular purpose." 2. It involved the expenditure of more than $250.

3. It was a supply within the “cognizance” of the street department. (See, also, Revised Ordinances of 1859, ch. 4, art. 2, & 3.)


Arguments for Appellants.

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4. It was not a contract or requisition for service requiring skill or science, so as to bring it within the case of People v. Flagg (17 N. Y., 184), and the argument of Judge COMSTOCK in that case.

5. It did not relate to the acquisition of a particular property for a special purpose, in the selection of which the judgment and discretion of the city officials would be called into action, as in the selection of a site for a market, so as to bring it within the argument of Judge HOFFMAN in The Farmers' Loan and Trust Company v. The Mayor, &c. (2 Bosw., 173).

The statute does not relate to and include all work and all supplies, the contract for which is to be made by the head of an executive department. (Smith v. The Mayor, &c., 21 How., 1; McSpedon v. The Same, 7 Bosw., 601.) It is no answer that there was but one gas company

within the district. The streets might have been lighted with oil or other suitable material, and notice might have been given for bids for gas, oil, kerosene or other suitable material, or other gas companies might be organized and licensed by the city to lay pipes and conductors over the same territory.

VI. The contract of the 9th July, 1858, was in substance and effect renewed from year to year. The street commissioner having once advertised for bids and duly made a contract with the plaintiff for a single year, and for a yearly compensation, which the plaintiff was willing to treat as a continuing contract from year to year, exercised his discretion in the matter, and instead of formally advertising when thero was no change in the price of any article with which the streets could be lighted, or any change in the circumstance authorizing the presumption that a contract more adrantageous to the city could be made, assented to the yearly renewal of the contract.

It was as if notice for bids had been published annually, and the plaintiff had made the lowest bid, and a new contract had been duly made. Each party regarded and treated the old contract as in force, and as renewed from year to year. Each party observed all its forms, and without doubt

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Arguments for Appellants.

either party could have maintained an action for a violation of any of its provisions. A liberal interpretation of the statute, and for the purpose of upholding the contract and saving the city officials from the pains and penalties denounced against a violation of the laws (see amended Charter of 1857, § 40), would authorize such informal renewal. But it would not authorize a renewal at an increased price, that is, the making of a new contract. The plaintiff having received pay for the annual supply for the several years since 1858, cannot now object that there was no valid contract under which the gas was supplied. It has been acted upon as a valid contract.

VII. If the last proposition is not true, then there has been no valid contract for the supply of gas since the 9th of July, 1859, and all the payments made have been without authority of law, and the plaintiff has no legal claim even for the original contract price, or any sum whatever. (Brady v. Mayor, 2 Bosw., 173; 20 N. Y., 312, S. C.; Appleby v. Mayor, &c., 15 How., 428.)

The statute (amended charter of 1857, § 40) makes it a penal offense to evade the provisions of the charter, and it follows that a contract made in violation of the regulations designed for the public good, to insure an economical administration of the city government, cannot be inferred. (Levy v. Yates, 8 A. & E., 129; Steaines v. Wainwright, 8 Scott, 280; Taylor v. Crowland Gas Co., 10 Ex., 293; Candrell v. Dawson, 4 C. B., 376, 399; Little v. Poole, 9 B. & C., 192; Armstrong v. Lewis, 2 C. & M., 274.)

But the right to the contract price is not disputed. The claim is that there is no valid contract, express or implied, to pay an increased price.

VIII. The contract, as originally made, was for a year, and when renewed or acted upon as a renewed contract it was continued in force for a year, and as an annual contract, and became obligatory upon each party for the entire year. Neither party could, during the year, rescind it. It was like a lease of a house or hiring of service for a year, at an annual rent or a compensation by the year. A continued occupation

Arguments for Appellants.

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by the tenant with the permission of the landlord, or a continuation of the service with the assent of the employer, beyond the year, would work a renewal of the lease or hiring for a second entire year, and not for a part of the term and to be terminated at the option of either party. (See opinion of court, as to effect of receipt of rent from tenant holding orer, in Jackson v. McLeod, 12 Johns., 182; Anderson v. Prindle, 23 Wend., 616; Chitty on Contracts, 20; Eversten v. Sawyer, 2 Wend., 507; Chitty on Contracts, 323.)

IX. The contract, then, as renewed, or continued in force from year to year, expired on the 9th of July, 1864, and the plaintiff having, with the acquiescence of the street commissioner and the chief of the bureau of lamps and gas, continued to furnish the city with gas for nearly two months, receiving pay therefor under the contract, the contract was legally renewed for the year, which will expire on the 9th of July, 1865, and neither party is at liberty to terminate or vary the same without the consent of the other before that time. The plaintiff cannot, therefore, clain the increased price.

X. Even had the contract been between individuals, the notice served on the 22d of August, of an intention to claim an increased price, would not have been unavailing; the party served would not have been bound to take any notice of it.

XI. But in the case of the defendants it was entirely insufficient and without significance. It could not lay the foundation of an implied promise to pay the increased price demanded.

1. There was a valid contract for the supply of gas to the 9th of July, 1865, and the city authorities were under no obligation to consider a proposition to vary its terms, and cannot by silence be deemed to have acquiesced in any change.

2. The statute prescribes the mode and manner of making contracts for the furnishing supplies exceeding in amount $250, and names the officers by whom they shall be made. The plaintiffs well knew this, not only as every citizen knows

Arguments for Respondents.

the law," but as having been a party to a contract duly made under the law.

3. There can be no such thing as an implied promise in the case. The common council were not capable of promising expressly, and cannot, therefore, by any act lay the foundation for an implied promise.

4. The remedy of the plaintiff was to cut off the gas, and refuse to furnish until another contract was duly made, if they were not bound for the year by the contract of 1858, and not to furnish gas contrary to law and without law, and then claim on a quantum valebat.

To uphold this claim would be to condemn the city officials for a violation of law.

Henry P. McGoun and Henry A. Anderson, for the respondents.

I. The duty of lighting the streets of the city is one of the duties by law imposed upon the defendants, and they aro bound to pay the expense attending the discharge of that duty. (Val. Laws, p. 273, $ 23; Furze v. The Mayor, &c., of New York, 3 Hill, 612; Hutson v. The Mayor, &c., of New York, 5 Seld., 168.)

1. The plaintiffs, by their charter, have authority from the legislature to manufacture and furnish gas to the defendants for lighting the streets in the district occupied by them. (Sess. Laws of 1848, p. 61, $ 18.)

2. In the discharge of the duty imposed upon the defendants, and for the benefit of the city, they consumed gas of the plaintiffs worth the amount for which judgment was rendered below.

3. The defendants, by authority of the legislature in 1864, received and now hold money enough to pay the amount claimed, raised expressly for the purpose of such payment, and appropriated by the common council therefor.

4. There would seem to be no just reason for withholding payment.

II. No written agreement between the plaintiffs and the defendants is necessary. The facts presented in the case

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