I concur in the .opinion of brother Landon, so far as he in substance holds that the contract in question was a valid one.
The amendment of 1897 did not affect vested rights. (People v. *502Supervisors, 67 N. Y. 109; Stat. Const. Law, § 31.) A contrae in pursuance of thé law as then existing, whether executed or executory, cannot.be annulled at the pleasure of the Legislature. (Potter’s Dwarris, 477; Fletcher v. Peck, 6 Cranch, 87; Von Hoffman v. City of Quincy, 4 Wall. 535, 549.) The ' rule is not changed by the circumstance that the public are interested to some extent in the performance of the contract. (The Delaware R. R. Tax; 18 Wall. 206, 225.)
There is no question about the right of the parties to make the contract in question except as to the time it should continue. That was an important element In the business transaction which the law contemplated. No; salary was attached to the office of reporter. The compensation for his services and expenses must .be obtained from the publication and sale, of the books. The success of the undertaking, for the benefit of himself as well as. of the public, required a contract if or a reasonable time. Upon the facts alleged in the complaint,, the conclusion is, I think, a fair one that the term of five years, being the term of the defendant’s appointment, was a reasonable time for the continuance of the contract, and must be deemed to be fairly within the contemplation of the statute as then existing. The contract, therefore, was authorized by law and within the protection of the constitutional provision against the impairment of the obligations of contracts.
There is no doubt that the act of 1897, if applicable to the contract, impairs its obligations.
We have not, I think, a right to assume that this contract was in effect between . the State and the plaintiffs, and that, therefore, the State had a right to. arrest performance and leave the plaintiffs to such remedy as they might have against the State for damages, under the doctrine laid down in Danolds v. The State (89 N. Y. 36) and Lord v. Thomas (64 id. 107). Those cases related to the construction of public'buildings, the property of the State. It was held that the State could stop the work, and leave the contractor to his remedy on the contract for. damages.
The contract in question was not in behalf of the State, and the books when, published did not belong to the "State and it was to pay nothing on account of them or to the reporter for his services. The undertaking of the defendant was .an individual one, and if he *503did not furnish to the plaintiffs the material he agreed to furnish, the State was not liable for such default. The defendant, by virtue of his appointment, had certain privileges in regard to a subject-matter in which the public had an interest, and, therefore, the defendant, in consideration of receiving his privileges, was charged with the duty of causing books to be kept on sale at a price not exceeding a certain sum.. The defendant, in order to make his privileges remunerative and discharge also the duty imposed upon him, made his contract with the plaintiffs. The contract was in no sense a public one and I fail to see any basis for plaintiffs claiming damages against the State.
The Legislature did not undertake to publish the reports. By the Constitution (Art. 6, § 21) it was bound to “regulate the reporting of the decisions of the courts,” and this.it assumed to do in the provisions of the Code on the subject. The fact of. regulation implies that some one else is charged with the duty of performance.
But it is said that the defendant is under obligation to carry out the law as. amended, and should, therefore, withhold performance from the plaintiffs.
If the contract for the five years’ term was valid and is not abrogated by the amendment of 1897, the defendant, by means of such contract, and as long as it is carried out by the plaintiffs, has provided in a legal manner for the discharge of the duty imposed upon him, and its burden cannot be increased after lie has, in pursuance of law, provided for its discharge. •
This is not a case of impossibility of performance, but a question •as to what statute should control the performance, or, rather, whether the statute in pursuance of which it was made shall Control.' In the Bronk Case (13 App. Div. 72) specific performance, was directed on the part of public officials, although the method of performance, if judged according to legislation subsequent to the contract, was contrary to law. ■
The plaintiffs, under the allegations of the complaint, are, I think, entitled to have their contract with defendant carried out, and, therefore, the judgment should be affirmed. ■ ■ ■
All concurred, except Landon, J., dissenting in opinion and Herrick, J., not sitting.