On the 8th of July, 1903, the plaintiff entered into a'contract with the department of street cleaning of the city: of New York to put Upon certain scows at various dumps, garbage from the city and to. permit plaintiff to select therefrom and appropriate to his own use, rags, rope, wood, metal and certain other substances, plaintiff paying for such privileges, in addition to doing the work, the, sum of $1,230. The contract was for the week beginning -Monday, July thirteenth. Plaintiff entered .upon the performance of the work and continued until 3 uly fifteenth, when he quit, and there *357was then returned to him $615, one-half of the amount which he had paid, the other half being retained, by the city. Subsequently he filed a notice of. claim with the comptroller against the city for this amount and also a claim for $1,000, the- profits alleged to have been lost by him by reason of the act of the city in refusing to let him fully perform the contract. The claim was rejected and he thereupon brought this action to recover damages for breach of contract. The defendant pleaded the invalidity of the contract, in that the-city had not advertised for bids prior to making-it. When the case came to trial the court held that the contract was invalid and could, not be enforced, and permitted plaintiff to withdraw a juror for the purpose of applying at Special Term for leave to amend hi§ complaint. This he thereafter did, and such leave being granted he then .amended his complaint by alleging that at the time of entering into the alleged contract he and the deputy commissioner of the department of s'treet cleaning believed they were making a valid contract, and that the money paid by the plaintiff was under the mistaken belief that such contract was good and could be enforced, by reason whereof he was entitled to the return of the $615 retained by the city. The city pleaded .as a defense that. the plaintiff defaulted in performance, in that lie-did'not provide the required number of laborers to do the work and by reason of that fact the contract was terminated. It also pleaded as a further and separate defense that the plaintiff voluntarily 'abandoned and surrendered the alleged contract and accepted from the defendant the sum of $615 in full payment and settlement of all rights which he claimed to have under the contract.
Upon the issue thus formed the action again came to trial and the testimony offered on the part of the plaintiff was to the effect that when he entered into the alleged contract he supposed it was valid and enforcible, and that he was compelled to abandon it by the officials -of the city, and the $615 was retained against his protest and objection. The testimony on the part of the' city was to the effect that the alleged contract was abandoned at the request of the plaintiff, who, by reason of a strike, was unable to do the required work; that in pursuance of such request he was released, he consenting that the city retain, as a consideration thereof, one half of the amount which he had paid. This was the situation at the close *358of the trial—:a sharp conflict of fact as to whether ¡or not the plaintiff had not voluntarily relinquished .all claims to money which the city had retained by reason of his being released, from further performance of the contract. Notwithstanding this sharp conflict of fact the trial,court directed a verdict for the plaintiff for the amount claimed, with interest. Judgment was subsequently entered thereon and defendant appeals. I
I am. of the opinion that the judgment should be. reversed. It might - well be doubted ■ whether, in any view, the plaintiff could recover the money which the city retained. He had the benefit of the alleged contract for substantially one-half its term. The.money which he paid was for the privilege of selecting certain substances from the garbage. He had selected these substances, or had had an opportunity to do so, during substantially one-half ¡the: term of the contract. This being so¿ it would seem unjust and inequitable to the city to compel it to return to him the full ampunt paid, even though' the contract was illegal, because he had- benefited by it to the, same extent that he would had it been legal.' !
But whether this conclusion be correct or not] there certainly • was a question of fact for the jury, because if the testimony, on the part of the city were correct, to the effect that he ¡voluntarily consented to its retaining one-lialf" the amount paid in consideration of being released from further performance, then! under nó view could that be reclaimed! It was, in effect,, an accord and satisfaction between the parties, an adjustment and settlement of their respective claims. This question should have been ¡submitted to the ■ jury, with' appropriate instructions bearing on the subject. The . court could not arbitrarily withdraw all questions of fact from the jury and direct a return of the money on the ground that the contract was illegal, and the plaintiff made a mistake iii entering into it by supposing that it was valid and enforcible, ¡
The judgment and order appealed from must bp reversed and a new trial ordered, with costs to appellant to abide event.
Patterson, Ingraham, Houghton and Scott, JJl, concurred.
' Judgment and order reversed, new trial ordered, posts to appellant to abide event. Order filed, !