First. Was it extra work within the true meaning of the contract ?
The restriction as to seventy-five dollars must not be taken too strictly in its application to what is really extra work. I can con*510eeive of cases where it would produce much inconvenience and some delay in carrying on work if it should be required to advertise for bids. Something may arise or occur in respect of circumstances and conditions of work .that would render it necessary to make some restrictions or changes in the manner or method of doing it. In such matters the limitation must be reasonably, if not liberally, interpreted, for the reason that it would be connected with the contract. ■ The character of the work contracted for would not be changed if it can be seen that the change or method of doing the work might be included or embraced in the contract-itself.
But this work in question can in nowise be called extra work, for this character of work was not embraced in the contract. Nothing ■as to stone wall or mason work of any kind was included in this contract. Then the -cost — one-third as much as the entire original cost -of all the work under the terms of the contract.
It is clear that this was a very important part of the work, and nn important alteration of the contract. The commissioner had no power to modify the contract in essential and material particulars. It is going very far to hold that such a modification, involving a ■cost of $900, is merely incidental to the work, and does not vary the terms of the contract; that the officer of the city Was authorized to make it. It was new work in its nature and character, and Hot incident to the performance of the contract. It was not a slight, but a very material deviation from the contract.
The plaintiff has disregarded the very terms of his contract in going on with this work without previous authority, and has acted in opposition to the charter.
The trial court, in arriving at a result favorable to the respondent, relies chiefly upon the case of Weston v. City of Syracuse (82 Hun, 68). That case differs from the one under, consideration in many important particulars. In that case the council modified the contract. The gradé of 1,000 feet, so far as it was not made to conform to the original contract, necessa/ril/y had to be changed, or there could be no connection with or through the outlet already -constructed and adopted by the resolution; the 1,000 feet was done in accordance with the contract and specifications, except in matter of grade. At the beginning of that 1,000 feet the sewer *511was about two feet above the grade established' by original map, and at the end of the 1,000 feet it was at grade. It was absolutely necessary, in order to do the work properly, that the grade should be changed. There was also a defense interposed- as to defects. The city claimed that the council had no power to modify the contract. The court held that the city could not set up want of power in respect to irregularities in its exercise and submitted to the jury whether the common council, with full knowledge of all the facts ■vn relation to the condition of the sewer, had modified the contract cvndwavoea, all objections as to ma/nner of performa/nce, in so far as it did not conform to the original contract, and whether, except as it had been modified or waived, the contract had been substantially performed. The amount of extra work is not stated in that case.
It seems to me that this case cannot be said to be decisive of the . questions presented on this appeal, as there exist substantial differences between that case and this.
The respondent calls attention to the case of Fleming v. Village of Suspension Bridge (92 N. Y. 370). The contract was for $5,185. There the extras claimed were $35, $70 and $600. The 'court considered they were slight variations. Held, that the commissioner having knowledge and assenting to extra work, mo formal resolution was necessary. There toas no restriction as to the amount of work reguvred to be let to bidders.
Messenger v. The City of Buffalo (21 N. Y. 196), cited by respondent, shows that more sand was required by reason of the city making the excavation deeper than was originally intended by the contract. An examination "of the opinion shows that there is a very substantial difference between that case and the one under consideration.
In Moore v. The Mayor, etc., of New York (73 N. Y. 238), cited by respondent, it was held that failure to publish an ordinance in a newspaper, recommending a local improvement, was a mere irregularity so far as the contractor was concerned.
Second. There is no evidence of a ratification by the council with full knowledge of the facts.
When the council ordered part payment, they took no affirmative action upon this modification or deviation from the contract, and a ratification cannot necessarily be inferred. The council may have *512supposed, and believed that this was for extra work, within the meaning of the contract, and not that the commissioner had greatly modified it in material particulars and made a new contract for new and additional work. It is not reasonable to expect that every time the council orders a payment upon the report of the officer in charge of a work, the aldermen have in- their minds a full knowledge of all the contracts, their terms and provisions, and that the statement of extra work.is such, within the true meaning of. the contract, and not' new work required by important changes in the contract, made by the officer without authority.
The council may act upon the presumption that the officer has kept within the scope of his powers and has not undertaken to usurp the powers of the council. The evidence fails to establish that the objectionable part of these transactions was known to the council, or that they had anything more than the general idea that the .work thus certified to was work done under the contract. It appears that, when the council did have knowledge, it repudiated the work done under the direction of the'city engineer.
A part payment on account of contract, made by a committee of council, there being no vote or order of council, is not a ratification. “ An officer who was not authorized to contract had no authority to ratify.” (Boston Electric Co. v. City of Cambridge, 163 Mass. 64.)
Where the common council has no authority to create a liability against it by express contract, it cannot legalize such a contract by acknowledgment, ratification or otherwise, (Lyddy v. Long Island City, 104 N. Y. 218. And see Dickinson v. City of Poughkeepsie, 15 id. 65. See, also, Parr v. Village of Greenbush, 72 id. 463-472.)
Where the contract for the work done is unauthorized and is originally invalid, because not entered into in the manner provided by the charter, part payment upon the work done does not constitute a ratification. (Town of Durango v. Pennington, 8 Col. 257; S. C., 7 Am. & Eng. Corp. Cas. 588.)
Neither can the estoppel “be placed upon the fact that the city received any - benefit from the increased work which it accepted. There was no such benefit¡ .and the city, in order to take the work-as contracted to be done, was forced to accept the work in its condition at' the time of acceptance.” In the case referred to the plaintiff excavated deeper than the contract called for, at the *513request of the city surveyor. (Genovese v. Mayor of N. Y., 55 N. Y. Super. Ct. 397-407.)
So, in the case at bar, the city receives no benefit from the work for which extra compensation is demanded, for it receives only what it originally contracted for. In order to receive that, it was forced to accept the work in its condition when completed under the terms of the contract. The benefit here was for abutting owners. The city holds the streets in trust for the public generally, as public highways, even though it owns the fee. Properly speaking, the streets are not the property of the city as a corporation — not city property. The city acts as agent or trustee of the streets for the people of the whole State. It is, therefore, apparent that the respondent cannot be allowed to recover upon a qucmtum meruit, as the city has received from him only what it contracted it should receive, and what the respondent contracted to perform. The city obtains no additional benefit from the work, and its acceptance was of the work performed under, the contract, and in accordance with it.
Thvrd. Of course the city cannot be held liable without ratification, simply by “acceptance” of the work. But if this was extra work within the contemplation of the pa/rties when the contract was executed, the city might be held without a/ny subsequent ratification. And, if it is not such, the commissioner had no power, but was necessarily prohibited from ordering it.
Fourth. Assuming-—as we must—that this was not extra worh which the commissioner might order, but required the assent of the council, could the council legally contract for such new work without complying with the charter? Where a contract has been made by the city and other work is done and material furnished, and the extra work and material are required by reason of a substantial alteration of, or addition to, the work as originally contemplated and contracted for, requiring new and distinct materials, the work and materials are not extras, and the provisions of the charter in letting such work must be observed, otherwise there can be no recovery as for extras. (Brady v. The Mayor, 20 N. Y. 312; Matter of Merriam, 84 id. 596, 604, 605; Bonesteel v. The Mayor, 22 id. 162; Murphy v. City of Albina, 22 Oreg. 106; 29 Pac. *514Rep. 353; Kramrath v. City of Albany, 127 N. Y. 582; McDonald v. The Mayor, etc., 68 id. 23; Brown v. The Mayor, etc., 63 id. 243; Smith v. City of Newburgh, 77 id. 136, 137; Moynahan v. Birkett, 81 Hun, 395; O'Brien v. The Mayor, 139 N. Y. 545.)
There is no power in the subordinates of a city to vary the contract as made. The provisions of the charter must be observed, and an officer of the city, in control and supervision of the work, cannot authorize a deviation from the contract, plans and specifications. (Stuart v. Cambridge, 125 Mass. 109.)
The officers of a city cannot modify an essential provision of a contract. (Bonesteel v. The Mayor, supra.) How this large amount of stone was not, in fact no stone whatever was, origina ly contracted for; and yet it is claimed (in the teeth of the seventy-five dollars restriction) that the council could agree to give plaintiff work amounting to $900, based upon the cost, plus fifteen per cent of such cost! Would not that be in direct violation of the spirit and plain intent of the law ?
And here it is claimed that the council made such a contract by ratification, when, there is not a particle of evidence indicating amy such intention. The vnference drawn of ratification seems to me clearly unwarrantable.
The plaintiff’s claim seems to be that, as he has performed the work, he must be paid by this wealthy corporation. Even though he knew the restrictions of the charter in making contracts with this municipality, and even though he disregards the terms of his -own contract with the city, still he must be paid for his work. There is nothing to show that the council consented to such an alteration of the contract. The officer reported to the, council that it was extra work, properly speaking and the council believed him and relied upon his word, but, upon discovering the true condition, repudiated his acts.
If this was “ extra work,” ratification is immaterial. But if, on the other hand, it was the result of very substantial departure from the work as contracted for, it must, as we have seen, be ratified with TcnowUdge.
We should not yield to the specious plea that the work has been doné by the-, contractors, and, therefore, the city should pay for it. *515"We should not seek to uphold such a transaction, so clearly contrary to the provisions of the statute. If we do, we will entirely frustrate the carefully designed scheme and plan of this municipality to protect the city from loose, reckless and indefinite expenditure of the people’s money. The provisions of the statute should be strictly enforced, so that the scheme devised and promulgated for the purpose of limiting the power of the city’s officials in incurring obligations on the part of the municipality shall be enforced and earned out, and not defeated and annulled.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Judgment affirmed, with costs.