The plaintiff has brought an action against the defendants, averring, in the ordinary language, that in November and December, 1863, he did work and furnished materials to the defendants and at their request, upon the public roads of the city.
To this complaint the defendants interpose a special defense as follows:
“ Second. The defendants' for a second separate and distinct defense, aver that in and by an act of the legislature of the state of New York, passed April 24, 1863, which act is published in the laws of 1863, chapter 277, page 407, and to *187which the defendants hereby refer, there was appropriated the sum of $75,000 to defray the expenses of repairing roads and avenues for the year 1863.
The defendants further answering aver, that at the time the indebtedness mentioned and referred to in the complaint is alleged to have accrued, and at the time of the alleged employment of the plaintiff to perform the work and furnish the materials mentioned in the complaint, the said appropriation was. exhausted, and there was and is no money in the city treasury applicable to the payment of the plaintiff’s claim.
The defendants aver that no appropriation covering the expense of the work alleged to have been done has ever been made, and they aver'that the necessity for the work has never been certified to by the street commissioner, nor was the Avork ever authorized by the common council.”
To this defense the plaintiff has interposed a demurrer, and upon it he had judgment in his favor, at special term, and from this judgment the defendants appeal to this court.
A short examination will, I think, shorv that the demurrer is Avell taken. The complaint does not aver Avhat kind of Avork the plaintiff did, nor what materials he furnished to the defendants. It is no answer to his claim for work and materials done and furnished upon the public roads of the city that there Avas an appropriation made by state authority of $75,000 for roads and avenues, which was expended. If the plaintiff’s claim Avas for Belgian pavement, or for cleaning streets, or for repaving or repairing streets, the act set forth in the answer appropriates several hundred thousand dollars to these purposes. It is not averred, and it does not appear, that the plaintiff’s Avork Avas such as was covered by the $75,000 appropriation, and not such as was covered by several other appropriations in and by the act set forth.
The complaint does not aver Avho employed the plaintiff on behalf of the defendants. It is no defense to his claim for his Avork to aver that no appropriation had been made, to cover the expense of the plaintiff’s alleged work according to *188section 28 of the charter of 1857, because by that section the departments of the city government are forbidden to incur expense before an appropriation. It does not appear, and is not averred, that any department employed the plaintiff. The common council may have done it by resolution.
[New York General Term, May 2, 1865,The remaining portion of the defense demurred to arises under section 38 of chapter 446, Laws of 1857, which provides for the issue of all contracts over $250 in amount by sealed bids received after notice, and that all contracts under that amount shall be upon the certificate of the “ appropriate department,” and that the “expenditure be as authorized by the common council.”
It does not appear, and is not averred, that the plaintiff's contract was under or over $250, or that the street commissioner’s was the proper department to certify to its necessity ; neither is it averred that the “expenditure” was not as authorized by the common council.
There is nothing in the pleading which brings the plaintiff necessarily under these provisions of the charter.
If the answer clearly presented the defense that the plaintiff was employed by an agent of the defendants ordinarily and apparently having power to do so, and work was done under this employment, it would not bar his recovery that an appropriation required to be made in advance had not in tact been made, or if it had been made that it was expended. The city and not the laborer would be required to suffer for the improper use of power by the agent of the defendants.
It can not be that the plaintiff, if legally employed, ceased to be so, by the expenditure of the appropriation for the particular work on which he was engaged, without notice from the defendants.
Judgment affirmed, with costs.
Ingraham, Geo. G. Barnard and Clerlce, Justices.]