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, *Page 295 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 judgment for the defendant. *Page 296