The sole question in the case is, what department of the city government had the right to hire an architect to prepare plans and specifications for the new school building?
The Education Law according to its own terms does not apply. (§ 875, subd. 6.)
The prescribing law is section 7 of chapter 481 of the Laws of 1908. It provides: “ The board of education shall recommend to the common council * * * the erection of any school building.”
The resolution of the board of education requested the common council to authorize the commissioner of public works and city engineer to employ an architect to prepare plans and specifications for an eight-room school building to replace the present structure. The common council then adopted an ordinance authorizing the commissioner of public works and the city engineer to prepare or cause to be prepared plans and specifications for the construction of a new school and “ to employ such expert assistance as may-be necessary for the purposes of carrying out the provisions thereof,” and authorized the mayor to enter into a contract for such expert assistance.
The board of contract and supply had nothing to do with the preparing of the plans and specifications. The statutory method seems to be that the common council shall, when plans and specifications are supplied under its direction, pass an ordinance authorizing the construction of a building in accordance therewith. The department of the government which may carry out the contract is the board of contract and supply. It “ may erect such buildings in the manner and upon the conditions prescribed in chapter four hundred and seventy-three of the laws of nineteen hundred and six ” (Second Class Cities Law, § 120).
What building? The building authorized by the ordinance of the common council. But how can the common council authorize *387the erection of a school building without knowing what it authorizes and how can it know what to authorize without plans and specifications?
The scheme of the statute does not contemplate the functioning of the board of contract and supply until the ordinance of the common council calls upon it.
It is of no avail to the respondent to invoke section 125 of the Second Class Cities Law which says: “ No person shall have power to make any purchase or contract any debt for which the city shall be hable unless specifically authorized by the provisions of this chapter.”
There are two reasons why section 125 is inapplicable. The first is, that the statutory scheme has got to be given a reasonable construction, and in yielding to such construction it is necessary to hold that before the common council could secure plans and specifications upon which to order a school building built, it would be necessary to have the services of an expert. (People ex rel. Kiehm v. Board of Education, 198 App. Div. 476, 481.)
The second is, in speaking of a statute similar to section 125, the court further said in the Kiehm case: “ This is a provision found in most statutes of the kind for the purpose of protecting municipalities against the extravagance of the different departments. I think it is not applicable to the situation involved in this case. Where a city board makes up a budget, the budget is approved by the common council and the money is raised, it is unlawful for such board to incur liability beyond the amount so raised and appropriated. In the case in question the board was acting under a statute which, in the first instance, required it to prepare an estimate of the cost of the proposed building. To do that it was necessary to have the services of an expert. The board could not comply with the law and advertise for bids until it had had such expert services and no appropriation could be made for such services until the cost of the building was ascertained, as the cost of such services was based upon the cost of the building.”
Finally it appears to me that the city is estopped from denying the power of the mayor to contract when it holds the mayor out to innocent third persons as capable of contracting.
If the common council should have passed the ordinance adopted by a vote of not less than three-fourths of all the members, unanimously approved by the board of estimate and apportionment determining that it was impracticable to procure the services of an architect, the city may not rely “ upon its failure or omission *388to do what it should have done and what it was within its power to do as a defense to a contract made by it.” (People ex rel. Kiehm v. Board of Education, supra; Van Dolsen v. Board of Education, 162 N. Y. 446.)
I am unable to concur in the opinion of the court.
Judgment affirmed, with costs.