Summary
In Muller v. Mayor, 63 N.Y. 353, at page 356, where language similar to that contained in the charter provision was considered, the court said: "It was for the commissioners to determine when an appraisal was necessary to enable them intelligently and properly to exercise their discretion and perform their duties in selling or offering for sale, or in leasing of city property."
Summary of this case from Brown v. City of New YorkOpinion
Argued November 24, 1875
Decided December 7, 1875
George H. Foster for the appellant.
D.J. Dean for the respondents.
The amended charter of the city of New York, enacted in 1870 and amended in 1871, was paramount to and superseded the revised ordinances of 1844 and 1859, and all other ordinances before then enacted by the common council, so far as the provisions of the charter were inconsistent or in conflict with the ordinances. By the charter (Laws of 1870, chap. 137, § 115, vol. 1, p. 395; Laws of 1871, chap. 574, § 9, vol. 2, p. 1247), the commissioners of the sinking fund have power to sell or lease any city property, after public advertisement and appraisal, under the direction of said board. By clear implication, the appraisal as well as the sale of city property is under the direction of the commissioners of the sinking fund who have full power to select the appraisers. This is included in the power conferred to direct as to the valuation and appraisal. It was for the commissioners to determine when an appraisal was necessary to enable them intelligently and properly to exercise their discretion and perform their duties in selling or offering for sale, or in leasing the city property. Whether a proper occasion existed for an appraisal, or whether made from a proper motive, cannot affect the validity of the appointment of appraisers, or impair their right to compensation for services performed in good faith. The appointees could safely act upon an employment within the apparent authority of the employers. They had the right to assume, that as to all the property which the commissioners had power to lease or sell, the employment was for some purpose connected with a lease or sale and so within the authority of the commissioners.
It is objected that the employment was illegal, and that the plaintiff cannot recover for services performed under it, because there was no appropriation to pay the expenses of the appraisal. Passing the questions as to the effect of this provision upon the contracts of the city officials, and whether the commissioners of the sinking fund are included within the terms of the act which forbids "any of the departments, or officers thereof" to incur any expense, unless an appropriation shall have been previously made covering it (chap. 137 of Laws of 1871, §§ 101, 137; Detwiller v. Mayor, etc., 1 N.Y. Sup. Ct. R. [T. C.], 657), this particular expense is not within the prohibition. For the expenses of an appraisal, and other charges connected with the sale or leasing of city property, there was no occasion for an appropriation, for the reason that such charges were directed to be paid from the proceeds of the sale or leasing, and it is only when, for some reason, they are not paid from that source, that the city is resorted to. The corporation is liable; but a fund being provided for the payment of the claim, a special appropriation was not necessary as a condition of incurring the expense. ( Baldwin v. City of Oswego, 1 Abb. Ct. of Appeals Dec., 62.) The employment of the plaintiff and his associates was not ultra vires, and so far as they rendered services for which within the apparent authority of the commissioners they might have occasion, the plaintiff is entitled to recover unless the remaining objection is fatal to the action.
It is forcibly urged that the condition upon which the appointment of the plaintiff and his associates as appraisers was to take effect was not complied with, and so the services were rendered without a valid employment. The resolution appoints the persons named a committee on behalf of the board to ascertain and determine the value of the city property, and directs "that the clerk be directed to notify them of such appointment, and the comptroller first making satisfactory arrangements with them as to their fees." The clause quoted is ambiguous, but reading it as the counsel for the defendants would have us, as requiring the comptroller satisfactorily to arrange as to the quantum of compensation, rather than the time and manner of compensation, the condition was performed. The resolution does not in terms, or by necessary implication, call for an agreement for the payment and acceptance of a specific sum for the proposed service. It might not be practicable to fix upon an amount in advance which would be a just and reasonable return for the labor to be performed. The arrangement was to be satisfactory to the comptroller, and he came to an understanding and arrangement with the appraisers, which was satisfactory to him and under which he was content that the service should be performed. He was authorized to and did accept the agreement as a compliance with the condition of the appointment. The plaintiff and the other appointees agreed not to claim the usual per centages for the service, and to accept in lieu thereof compensation upon the basis of a quantum meruit, and the comptroller promised that the compensation should be satisfactory and liberal. The commissioners of the sinking fund, of whom the comptroller was one, took this view of the resolution and of the action of the comptroller, for with knowledge of the facts they permitted and directed the appraisers to proceed in their work, giving them day by day instructions, and receiving the results of their labors. In this suggestion I regard the knowledge of the comptroller as the knowledge of his associates and all the commissioners of the sinking fund. This was in substance an agreement to pay the appraisers what their services should be reasonably worth. There is nothing in the language of the parties or in the terms of the arrangement that necessarily distinguishes it from the case of an ordinary hiring, where the value of the service is left to be settled after performance. In such a case, if the parties should fail to agree upon the reasonable worth of the service, it would be determined as other questions of fact, by a jury, and by the testimony of witnesses. Neither party would be expected to abide by the judgment of the other, and to pay or receive as the fair equivalent for the labor performed the price fixed by one. The comptroller said he would make the compensation satisfactory, and would make it very liberal; and again: "We will give you a liberal compensation." But this does not, to the exclusion of every other inference, and of necessity, imply that the comptroller was made the final arbiter of what would be a "satisfactory" or "liberal" compensation. The same language used between individuals would imply no more than that the employer agreed to pay what should be the reasonable value of the labor or other consideration of the promise, to be ascertained in case of disagreement by the proper tribunal, and in the usual manner. The most that the defendants can claim is that the circumstances and the position and relation of the parties, authorize the inference that more was intended than was expressed by the words used, and that the just inference is that it was intended to submit the whole question as to compensation to the comptroller, the plaintiff and his associates consenting to accept what the comptroller should determine to be a liberal or satisfactory compensation. If this be so, inasmuch as the conclusion is one to be arrived at, not from the language alone, but from that and all the circumstances proved, it was a question of fact for the jury and not of law for the court. It was not a question of interpretation, but of inference and of fact. ( Etting v. Bank of U.S., 11 Wheat., 59; Barreda v. Silsbee, 21 How. [U.S.] Rep., 146; Morrell v. Frith, 3 M. W., 402; Justice v. Lang, 52 N.Y., 323; Duffee v. Mason, 8 Cow., 25; Darnall v. Morehouse, 45 N.Y., 64; Gardner v. Clark, 17 Barb., 538.)
The letter of the plaintiff of the 28th October, 1871, is a concession that he did agree to leave the question of compensation entirely with the comptroller, and that he was then willing to leave it with the then deputy comptroller, who was then, I think, acting comptroller, although that does not appear by the record. The offer to leave the question to the deputy was not acted upon by the commissioners, and is not, therefore, binding upon the plaintiff. The effect of the admission depends upon the determination of other questions not properly before us. The statement is consistent with an agreement that the individual then occupying the position of comptroller should determine the compensation, although this might be a very restricted interpretation of the language, and one that should not be given to it, and we do not propose to decide it. It is enough that the plaintiff is not estopped by the letter, and what was the agreement is an open question, the letter being legitimate evidence upon the subject. If the agreement should be found to be as claimed by the defendants, other questions will arise upon the acts of the comptroller in the premises as bearing upon the right of the plaintiff to recover $3,000 as the amount fixed by the comptroller, or upon a quantum meruit, by reason of the neglect of that officer to act at all. These matters are not presented by the record, and we do not pass upon them.
It was error to grant the nonsuit, and the judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.