The financial condition of the city of Cohoes was investigated by the State Comptroller in his official capacity, and on June 15, 1929, he found and reported that the city was obligated for the payment of debts aggregating more than $500,000 beyond its constitutional capacity to incur debts. The mayor of the city at that time, and for several years immediately prior thereto, was a lawyer of mature years, and in the month of October following he was conducting a campaign for re-election. On the second day of that month the mayor tendered a contract to the plaintiffs, “ pursuant to the power and authority conferred ” on the mayor of Cohoes by section 55 of its charter, “ to examine the books and papers of the office of Comptroller of the City of Cohoes, with a view to a thorough investigation, examination and report of the finances of the City of Cohoes, and all its fiscal affairs; ” and to “ examine into the books and papers of all other departments of the City of Cohoes in any way relating to its financial condition or management; ” and to furnish “ recommendations as to the installation of a better system of accountancy and financial management * * * and also be of such a nature that the same may be available to.and understandable by the citizens of Cohoes at any and all times.” The plaintiffs allege that they accepted this offer and entered upon the work prescribed. Yet the record contains no report, partial report or recommendations made by the plaintiffs, except its letter of October 31, 1929, in which it questions the truth of the report of the State Comptroller, and states the opinion of plaintiffs that the city of Cohoes “ is not now and probably has not been indebted beyond the limit imposed ” by the Constitution.
Plaintiffs presented their formal and verified bill for “ Professional services $4,000,” and for “ Expenses — Hotel, Traveling, Office, etc., $2,000, as agreed, $6,000.” The only item particularized was one for “ Examination of accounts for the purpose of determining the financial position of the City of Cohoes, in particular reference to the constitutional debt limit and rendering a report thereon.”
*28The charter of the city of Cohoes (Laws of 1915, chap. 130) prohibits the incurring of debts against the city by any official, except in the ways and for the purposes therein specified. Section 31 forbids an appropriation of money “ for any purpose,” except by ordinance specifying each item and the amount; section 187 forbids any officer or board to act under any “ written contract ” for the payment of $250 or more “ until there shall be indorsed thereon by the corporation counsel a certificate to the effect that the city officer, board or department which has executed the same on behalf of the city, had authority and power to make such contract; ” section 99 is entitled “ Contracts and expenditures prohibited,” and provides that “ nor shah any such board or officer expend or contract to expend any money or incur any liability upon or by virtue of an open market order untE an order in writing, made in triplicate, is submitted to the comptroller and he shaE have certified thereon that unexpended funds, appropriated for that purpose, are available to meet a claim therefor if incurred; ” and, section 115 provides that “No person shall have power to make any purchase or contract any debt for which the city shaE be hable unless specificaEy authorized by the provisions of this chapter.”
It is after an examination of these statutes, and the facts of the case, that we must consider section 55 under which the mayor assumed to make the contract in question with the plaintiffs. That section gives the mayor authority “ to examine the books and papers of any officer, employee or department; ” and also “ to appoint one or more competent persons to examine.” And in that connection he may also administer oaths, take affidavits and issue subpoenas. Beyond these, no power is expressly given, nor is any suggested. It makes no reference to the various sections that provide for the creation of obEgations binding on the city; neither does it contain any language that excludes any of the positive prohibitions against the incurring of debts in behalf of the city. The statute gives to the mayor, personaEy or by his appointee, very broad powers of investigation. He is at Eberty to enter any office in the city, and to examine every official and everything in it. He is free to appoint any other city official or a private person to accompany him, or to investigate in his behalf, as weE as to administer oaths and issue subpoenas. Indeed, it would be difficult to conceive of a greater scope of power to make investigation than that conferred by section 55, despite the fact that it contains no provision for the making of contracts or the spending of the city’s money.
There is not the sEghtest proof in the record that any sudden emergency had arisen, or that any other officer of the city was *29guilty of any corruption which required extraordinary action by the mayor; neither did it appear that there was collusion or subterfuge on the part of others which called for exposure or correction. There was no proof that the mayor himself was incompetent or unable to make such investigation as was within his power and he deemed proper; nor was there proof that no competent and willing officer or other person would accept his appointment to that service. Neither did he seek the lawful appropriation of funds for such a purpose.
The city, of course, was then in a regrettable financial condition; but this, culminating at the end of the mayor’s terms of office, was a notorious fact, to the extent of being the subject of newspaper account throughout the State, long before the alleged contract was proposed, and as was made evident by the official report of the State Comptroller in the June preceding. Even the State Legislature, a few months later, intervened by the enactment of special laws to protect the rights of creditors of the city, and to drastically limit the power of the city to borrow money except for the purpose of discharging debts already incurred (Laws of 1930, chaps. 80 and 555). Not only was there no proof of necessity for the questioned action on the part of the mayor, or for the services of the plaintiffs, but it is clear, as it must have been clear then to a reasonable person, that the proposed services of the plaintiffs, if they were in fact rendered, were a work of supererogation, and were useless.
Under section 55 the mayor, beyond investigation, proposed a contract with the plaintiffs requiring “ recommendations as to the installation of a better system of accountancy and financial management,” so that the bookkeeping of the city “ may be available to and understandable by the citizens of Cohoes at any and all times.” It is idle to contend that a contract for the hiring of such services is comprehended within the terms of the statute, any more than the statute contemplates a hiring by the mayor to recommend new and better streets, new and better fire apparatus, or new and better police equipment.
The judgment and order should be reversed, and a new trial granted.
Rhodes, J., concurs.
Judgment and order affirmed, with costs.