Arguments for Respondents. create a contract to pay for the gas consumed what the same is reasonably worth. The doctrine that corporations can be bound by implied contracts, to be deduced by inference from corporate acts, without either a vote or deed in writing, is established in this country with great clearness and solidity of argument. It cannot now be disputed. (3 Kent's Com., 291; Bank of Columbia v. Patterson, 7 Cranch., 299; Bank of U. S. v. Dandridge, 12 Wheat., 74; Perkins v. Wushington Ins. Co., 4 Cow., 645; Am. Ins. Co. v. Oakley, 9 Paige, 496; Magell v. Kauffman, 4 Serg. & Rawle, 317; Randall v. Van Vechten, 19 Johns., 60.) 1. It may be said that the plaintiffs, by the terms of the resolution of April 25, 1855, and by their charter, became bound to supply gas to be used by the corporate authorities as well as by private consumers, and if so, a reciprocal obligation arose on the part of defendants to pay the value of the gas consumed. By the agreement made July 9, 1858, continuing in force for but one year, the value for that year was fixed at the rate of $28.80 for each lamp, estimating such lamp to be lighted 3,800 hours, and to burn three cubic feet of gas per hour, and a pro rata price was to be paid for each additional hour. After the expiration of that agreement either party was at liberty, at any time, to refuse to be bound by the price named in the terminated agreement, and the measure of compensation for gas consumed after such refusal must necessarily be the actual value of the gas consumed. The notice of 22d August, 1864, terminated any obligation on the part of the plaintiffs to be bound by such price after the first of September, 1864, and the reason assigned in the notice is abundantly sufficient to justify it. If the rate named in the notice of 22d August, 1864, had been more than the gas was worth, a question might have arisen, whether the corporation were bound to the price namned in that notice; but it is unnecessary to consider that question in this case, for it is conceded that the was worth fully the amount claimed. gas consumed 2. Section 38 of the act of 1857 is not applicable to this Arguments for Respondents. case and imposes no restriction upon the defendants in the performance of their duty in the premises. This section provides first, that whenever a contract is "made or let by authority of the common council" (i. e., whenever the common council shall direct a contract to be made or let), such contract shall be made or let by the appropriate head of department, without further action on the part of the common council and in the manner prescribed by their ordinances, in other words, when the common council have authorized a contract, its execution devolves upon an executive department. 2d. Whenever "work is necessary to be done to complete or perfect a particular job, or any supply is necessary for a particular purpose, which work is to be undertaken or supply furnished for the corporation, and the several parts of said work or supply shall together involve the expenditure of more than $250, the same shall be by contract" unless ordered otherwise, and all such contracts shall be given to the lowest bidder, &c. The claim here made evidently comes within neither clause of this section, and as to it the general liability of the defendant to pay for what has been used by it or by its authority is unrestricted. The first clause was probably intended to apply to matters forming the subject of assessment. (See Laws of 1861, ch. 308, p. 702.) The second clause has reference to a work undertaken and abandoned, and to laying in supplies of those articles which may be bought in quantity, such as coal, stationery, furniture, books, &c. But it is evident from the provisions of the section that it relates only to such matters as can properly be the subject of general competition, and can safely be awarded to the lowest bidder. When extended to matters not properly the subjects of competition, it ceases to accomplish its object and defeats the intentions of the legislature. In The People v. Flagg (17 N. Y., 584), COMSTOCK, J., says: "The amended charter of 1853 requires that all work to be done and supplies to be furnished for the corporation, Arguments for Respondents. involving an expenditure of more than $250, shall be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days, and all such contracts when given shall be given to the lowest bidder with adequate security. It is claimed on the part of the appellant, that the services performed by the relator should have been contracted for with the lowest bidder, pursuant to the requirement of the charter. The language of this provision is somewhat broad, but I am quite well satisfied that it does not include the services of the particular kind now in question. In a large sense the term 'work' may include all labor, whether mental or corporeal, but it has a more restricted sense which may confine it to the various kinds of manual labor which may properly be the subject of general competition, and can safely be awarded to the lowest bidder. It would be an unreasonable and mischievous construction of the statute to apply it to services which require, as their proper performance, scientific knowledge or professional skill. I do not believe that the services of a lawyer, of a physician, or those upon which the claim in the present case is founded, are embraced within the provision." In The Farmers' Loan and Trust Company v. The Mayor, &c., of New York (4 Bosw., 89), HOFFMAN, J., speaking of this restriction, says: "It is clear, however, that there must be a class of cases in which the very object of the exercise of a municipal power would indicate the inapplicability of the provision. The establishment of a market within a particular district of the city, calls for the exercise of discretion in choosing the locality so as to meet the convenience of the greater number, and facilitate the means of cleansing, which may be wholly defeated or impaired if the corporation was compelled to advertise and take the plot of ground offered by the lowest bidder," &c. 3. The provisions of section 38 are inconsistent, and, without reference to the conduct of city affairs, unintelligible. The section must be interpreted by considering what it was intended to accomplish, what to prevent, and by regarding the circum Arguments for Respondents. stances of the case to which it is to be applied. As interfering in some degree with the rights of the corporation vested in it by its ancient charters, it must be limited to those things clearly intended to be affected by its provisions. (Val. Laws, p. 240, § 40.) Certainly that for which compensation is claimed in this case is not reached by it. This claim is neither for work done or supplies furnished, within the meaning of the act. Under no circumstances would the manufacture and conducting of gas to street lamps be a subject for general competition. The act of 1848 is in conflict with the idea. Too great outlay is required in preparing for the manufacture of gas. The opening of streets for laying gas pipes by every one, would be both impracticable and impossible. The legislature has recognized this, both in the act of 1848, already cited, and by their action in the tax levy of 1864 providing means to pay this very indebtedness. 4. The defendants, in aid of their position, refer to two or three cases, one of which only, Brady v. The Mayor, &c. (20 N. Y., 312), was decided in this court. It is unnecessary, in order to establish our claim, to controvert those cases. They are not controlling in this case. (a.) They arose under the act of 1853, which differs materially from the act of 1857, and was repealed by it. (b.) The "work done and the supplies furnished," forming the subject of litigation in those cases, came exactly within the admitted signification of those words, as used in the act of 1853. (c.) Those cases were brought upon written contracts, made in entire disregard of the provisions of the charter and ordinances of the city, and in violation of the spirit and letter of both. In Brady v. The Mayor, &c., DENIO, J., says: "It is not necessary to deny that one who has bona fide performed labor under a contract which is void from a failure to comply with the statutes, may maintain an action against the city to recover a quantum meruit where the work has been accepted by the city and has gone into use for public purposes." (20 N. Y., 310.) That case makes for rather than against us. Arguments for Respondents. III. A statute should not be construed to work a public mischief. The construction claimed by the defendants would work a greater mischief than any the statute was intended to prevent. (People v. Laimbier, 5 Denio, 9.) The streets cannot be lighted except by using the gas of the plaintiffs; and to plunge the streets into darkness would work irreparable injury to the whole city above 79th street. Such could not have been the intention of the legislature, acting when the same state of facts existed. And yet the lamps cannot continue to be lighted unless the gas consumed is paid for. 1. The intention of the legislature is to be gathered from other acts in pari materia, as well as from the act itself. Sometimes it is to be collected from the cause or necessity of the statute, and sometimes from other circumstances, and whenever it can be discovered it ought to be followed with reason and discretion in the construction, although such construction seems contrary to the letter of the statute. (People v. Utica Ins. Co., 15 Johns., 358.) A thing within the letter of the statute, is not within the statute, unless it be within the intention of the makers. (Jackson v. Collins, 3 Cow., 89; James v. Patten, 2 Seld., 9; People v. Draper, 15 N. Y., 532; The King v. Younger, 5 T. R., 449; Margate Pier Co. v. Hannam, 3 B. & A., 266; Reniger v. Foggassa, Plowd., 18.) (a.) If the intention of the legislature was to secure work or supplies to the defendants at the lowest rates, by competition, it is evident that the act of 1857 was not intended to apply to lighting the streets with gas, unless the common council should so direct. At that time the whole city was, as it now is, divided into districts, each occupied by a single gas company, and neither having pipes laid in the district of the other. The act of 1861 (Val. Laws, 480), applies to all contracts made under section 38. If, therefore, the lighting of the streets in either district is offered to the lowest bidder, the company occupying such district may name its own price, perhaps ten times the value |