(dissenting.) The liability of the city for the amount expended by the plaintiff in repairs to the pier leased by him depends upon the obligation binding the city, contained in the lease. It is settled that, if there is no such covenant in the lease, the defendants are not liable for the repairs made by plaintiff. Steam-Boat Co. v. Mayor, etc., 78 N. Y. 1. By the lease the parties of the first part (the defendants) agreed that they would, prior to the commencement of the term demised, or as soon after such commencement as should be found practicable, make such repairs to the wharf property as the board of commissioners should consider necessary to put such property in suitable condition for service during the term demised. If that covenant stood alone, undoubtedly the plaintiff would be entitled to recover for any damage sustained by reason of the failure of the city or the commissioners to make such repairs. There is, however, added to this covenant a provision that the “parties hereto promise, agree, and understand that no claim that the said wharf property is not or was not, at the time of the commencement of said term, in a suitable condition for the use and purposes mentioned in the lease, shall or will at any time be made or allowed. ” The only construction that can be given to this covenant is that the repairs to be made were to rest entirely within the discretion of the dock commissioners, and that the plaintiff was to make no claim, against them or against the city, for any failure on their part to observe the covenant that they had made. The commissioners were public officers acting on behalf of the municipal corporation, and it is not improbable that the plaintiff was willing to depend upon them to have the repairs made without insisting upon a covenant on behalf of the city that he could enforce, and thus agree that no claim should be made- for a failure to make any repairs, or to put the wharf property in a suitable condition for use during the term. This seems to be the only construction that will give any effect to the provision in question. If the city was to be liable for the failure of the dock commissioners to make such repairs, this proviso is absolutely meaningless. We should not consider whether or not such covenant was a provident one for the plaintiff to make. All that we have to do is to enforce the agreement that was actually made, and the •defendants can only be liable for a breach of some express obligation made on their behalf by officers acting under authority to bind them. Here the commissioners agreed that they would put the wharf property in repair, but the plaintiff agreed that he would make no claim that said wharf property was not put in repair, and it seems to me that, having made such agreement, he is now precluded from suing the city because the wharf property was not put in such repair. I do not understand that this question was passed on by this court on the former appeal. There the judgment was reversed because it did not appear that the dock commissioners considered the repairs made by plain*325tiff as necessary, and the question of liability of the defendants under the covenant does not seem to have been discussed in the opinion. I think, therefore, the judgment should be reversed, and a new trial ordered, with costs to abide the event.