I dissent. By section 10 of the Greater New York charter of 1897, the various municipalities which were by that act to be consolidated with the city of New York on the 1st day of January, 1898, were directed to prepare a budget and levy taxes for that year and to turn over the proceeds of the taxes to the consolidated city. These funds were to be used "for the expenses of the city of New York as constituted by this act," and it was the duty of the board of estimate to apportion the funds to the various city departments created by the act, so that the funds might be used as nearly as possible for the purposes for which they had been raised. The conduct of the affairs of the consolidated city from and after the consolidation was vested in the officers and departments of the city. No power was given to the municipalities whose existence was to cease on the consolidation to regulate the conduct of the municipal affairs of the consolidated city during the year 1898, any more than during any subsequent year. Up to the time of consolidation the municipalities possessed their full chartered rights to manage their own affairs, and so far as the ordinary conduct of business required contracts which would naturally extend beyond the time fixed for the consolidation, those contracts would be binding on the consolidated city. But the contract on which this action is brought is not of that character. It is for an ordinary detail of the current management and maintenance of a city street and was not to commence until four months after the consolidation took effect. It seems *Page 37 to me to fall exactly within our decision in the case ofHendrickson v. City of New York (160 N.Y. 144), where a contract for lighting the streets of Jamaica was held void as intended to embarass the Greater City in the lighting of its streets. It is said, however, that the case presented a question of fact, that of good faith, and that if the village trustees made the contract in good faith it was binding on the city. "Error lurks in generalities." What is the meaning of good faith as used in this contention? No one attributes to the trustees an intention to defraud the new city, but their purpose is perfectly plain and admitted on the argument by the learned counsel for the appellant. He says that the trustees thought that the street was of such a character that it should be sprinkled during the next summer, and that they determined to make sure it would be so watered by executing before the consolidation a contract for the work. Now, whether the street should be watered after the territory became part of the Greater City of New York was a question to be determined by the officers of the new city, not by the trustees of the defunct village. Such officers might think it unwise to sprinkle the street, because they might determine to repave it or they might determine that the work could be done at less expense by making it part of a contract covering the territory of the whole borough, or by city employees, and not by contract. It is difficult to imagine a case where the intent of the officials of the village to control the subsequent conduct by the consolidated city of its own affairs could be plainer or more openly avowed.
The judgment appealed from should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT and VANN, JJ., concur with GRAY, J.; HAIGHT, J., concurs with CULLEN, J.
Judgment reversed, etc. *Page 38