James R. Keane and Mary A. Hennessey, Respondents, v. The City of New York, Appellant

James R. Keane and Mary A. Hennessey, Respondents, v. The City of New York, Appellant. Parchase of supplies for the New York fire department in an amount on any one day of not to exceed $1,000 — invalid unless the head of the depa/rtment certifies to-, the necessity thereof — their use by the city does not impose any obligation. A person who, without a written contract, furnishes supplies to the fire department of the city of New York in ah amount not exceeding $1,000' on any one day, cannot recover the price or value thereof unless he shows an actual compliance with section 419 of the Greater New York charter (Laws of 1897,. chap. 378) which provides that “ no expenditure for work or supplies involving an amount for which no contractus required (not exceeding $1,000) shall ha made except the necessity therefor he certified to by the head of the appropriate department.” The use by the city of supplies furnished in violation of such section of the charter does not impose upon the city any implied obligation to pay for them. Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of May, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term. The plaintiffs, doing business under the name of James R. Keane & Co., furnished and delivered to the fire department of Ne.w York city divers goods, wares and merchandise, and made repairs for said department between July 26, 1898, and August 29, 1901, and suck goods and work were ordered at various times and accepted by officers of the fire department, no item being of the amount of $1,000 or over, but aggregating $5,307.76 of which only $360 has, been paid, leaving unpaid the defendants the sum of $4,947.76. The amended complaint alleges that the goods were furnished upon an emergency and immediate necessity, and in pursuance of- orders identical with those which the plaintiffs had filled in a long course of dealing with the defendant and for which the defendant had paid, as it had agreed to pay these orders. The defense, in brief, was-that no contract founded on sealed bids was made and that the necessity for the expenditure was never certified to by the head of the department nor was such expenditure authorized or appropriated and no order given for the goods and work as authorized by law. At the opening of the trial after the jury was impaneled and sworn,, it was admitted by the defendant that the goods were furnished by the plaintiff and that the value stated was reasonable, and the bill of particulars shows that there was not on any one day ordered or delivered goods of the value of $1,000 or upward. It was further conceded that the goods were ordered by an officer of the department known as the “ purchasing agent.” The defendant contended, however, that this officer acted 'without the necessary authorization, and, therefore, no valid contract existed and the plaintiff could not recover. The plaintiff called the “ purchasing agent,” who testified that, the orders given by him to the plaintiff for the goods in question were sometimes written and sometimes verbal, that he was at the head of the “ supply bureau,” and that all orders were issued through himself on request of the different bureaus to him to purchase whatever was required; that if the foreman of a fire company wished supplies, lie issued a requisition which would be countersigned by the chief of battalion of that company and forwarded to the fire department to the chief of the bureau who would send the requisition to him; that each year a certain appropriation was made for supplies for each borough, and that all orders given by him to plaintiffs were through an order signed by himself as purchasing agent or over the telephone, and the amount appropriated was not exceeded; that he would send for estimates and give the order to the lowest bidder; that he consulted with the department commissioner, but did not tell him of all the orders, as he was authorized to give them himself ; that his duties were not in writing at first, but appear in a letter from the commissioner to the municipal civil service commission ; that- the fire commissioner had instructed him that all requisitions from the different bureaus were to come to him after being indorsed by the chief of battalion and forwarded to the chief of the department, and he was held strictly responsible for filling such orders properly from the lowest bidder; that he obtained quotations of prices before purchasing each article and “ submitted to :the' commissioner the requisitions for the purchase of the articles specified at the lowest price quoted with the quotations attached in every instance; ” that he did not in each individual purchase obtain his approval, but submitted quotations personally on each requisition. The defendant put in evidence a regular form requisition by the purchasing agent, duly certified by the commissioner for November 29, 1898, and another dated November 29, 1898, and these it was testified included goods other than those furnished by the plaintiffs, and were the only certified requisitions relating to this claim which upon a search among the department records had been found. The defendant moved to dismiss the complaint on the ground that plaintiffs had failed to show that the purchasing agent had authority to order the goods or that the commissioner had ever issued a certificate of necessity as required by section 419 of the charter, which motion was denied and exception taken. Motion for a verdict for plaintiffs was then made and granted. From the judgment thus entered in plaintiffs’ favor the defendant appeals. Chase Mellen, for the appellant. Thomas Gilleran, for the respondents. [MAJORITY — O'Brien, J.:] O'Brien, J.: There is no serious dispute as to the facts and our conclusion must turn upon the determination of a clean-cut question of law. It appears that the purchases here, though exceeding in the aggregate $1,000, were made at different times, and at no time did any of the orders given for supplies reach that figure. The purchases, therefore, in each instance being for less than $1,000, might be sustained if the provisions of the charter relating to the purchase of articles of supply for a less sum than $1,000 were complied with. The language of the charter (Laws of 1897, chap. 378, § 419) is that “no expenditure for work or supplies involving an amount for which no contract is required (not exceeding $1,000) shall be made except the necessity therefor be certified to by the head of the appropriate department.” This requirement, the defendant claims, was not met, in that there was a failure here to procure the certificate of the fire commissioner showing the necessity for the many orders given to the plaintiffs by the purchasing agent of the department for the work and materials furnished and for the value of which the plaintiffs seek to recover. There is no question as to the honesty and good faith of the plaintiffs in furnishing the supplies, nor of the purchasing agent in selecting these plaintiffs to fill the orders. They were given, it would seem, in pursuance of a course of dealing which had grown up in the department under which the purchasing agent upon receiving requisitions from the different engine houses undertook, after he had concluded that the articles requested were necessary, to himself procure them. Upon similar facts it has frequently been urged, as it is in this case, that the city having had the supplies, should be required in all honesty to pay for them; and that, although no recovery could be had upon the theory of an express contract, the claim should be supported on the ground of an implied liability on the part of the city. This contention, however, as we shall show from the cases, cannot be sustained either in principle or upon authority. The principal legal question presented, therefore, is whether the failure to prove that the fire commissioner certified to the necessity for the purchases is a bar to the plaintiff’s right to recover. This question we do not regard as a new one, and, without an extended discussion, think that a reference to what has been decided where cognate questions have been presented is controlling as against the plaintiffs’ right to recover. We do not by this intend to state that the precise question here involved has been passed upon; but that a review of the authorities shows that in every case there must be a full compliance with the charter provisions in order to charge the city with liability. It has been repeatedly held that municipal and other public bodies can act only in the way prescribed in their charters or acts of incorporation. (Parr v. Village of Greenbush, 72 N. Y. 463 ; Francis v. City of Troy, 74 id. 338 ; Matter of Emigrant Industrial Savings Bank, 75 id. 388 ; Smith v. City of Newburgh, 77 id. 130; People ex rel. J. B. Lyon Co. v. McDonough, 173 id. 181.) Among the earlier cases involving the liability of the city of New York is that of Donovan v. Mayor (33 N. Y. 291), wherein there was a similar failure on the part of the plaintiff to prove that a necessity for the work had been certified to by the head of the appropriate department, and it was said : “ 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.” In the case at bar the sum needed was in fact appropriated; but the same principle is involved, the evidence showing that there was not, 'with respect to each purchase made, a certificate of necessity, as-required by the charter, given by the head of the department. In the case also of McDonald v. Mayor (68 N. Y. 23) it was said: “ It is fundamental that those seeking to deal with a municipal corporation through- its officials, must take great care to learn the nature and extent of their power and authority; ” and therein it was held (head note): “ Where the municipal charter prohibits its officers from contracting on its behalf for the purchase of materials, save in cases and in- a manner specified, the iyunicipality is neither liable upon a contract made by an official in violation of, or without a compliance with, the requirements of the charter, nor can the value of materials furnished under the contract be recovered upon any implied liability.” This latter holding disposes of the contention made that the city having used the articles, though not furnished in compliance with the law, can be compelled to pay for them, not upon the theory of an express, but upon the ground of an implied liability. The principles enunciated in the McDonald Case (supra) were fully stated and adopted by this court in Walton v. Mayor (26 App. Div. 76). Although in the latter case the question was whether the provisions of the Consolidation Act (Laws of 1882, chap. 410, § 64, as amd. by Laws of 1893, chap. 327) in reference to contracts involving the expenditure of more than $1,000 was complied with, the discussion therein proceeds upon the same lines, and, in principle, that case is controlling upon the legal question which is now presented for our determination. The plaintiffs here failed to show that the head of the department had certified to the necessity for the purchases made; and the purchasing agent, although he says he consulted with the commissioner, concedes that he ordered the goods in many instances personally by written order or verbally over the telephone. This was not a compliance with the charter requirements, and, furthermore, it appears that the paper mentioned by the purchasing agent as prescribing his powers says, with respect to purchasing supplies: “ He shall thereupon prepare a requisition for the supplies required for the succeeding quarter year, submitting the same to the Commissioner for approval before purchasing.” It was incumbent upon the plaintiffs to furnish goods only upon an actual compliance with the charter provisions in order to fasten liability upon the city. The evidence failing to show that there was such a compliance, it follows that the judgment directed in plaintiffs’ favor must be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred." Judgment reversed and new trial ordered, with costs to appellant to abide event.