(dissenting):
The plaintiff made and completed a contract to erect a school building in West Farms, Westchester county. It was made with the proper officers, and the claim therefor remaining unpaid was duly certified, so that it became a valid demand against the town. Under the provisions of the act of the legislature annexing certain parts of Westchester county to this city, all the debts and obligations of the several boards of education in either of the towns annexed, of which West Farms was one, were charged upon and declared to be the debts and obligations of the mayor, aldermen and commonalty of the city of New York. (Laws of 1873, chap. 613, § 8; Laws of 1874, chap. 122, § 2; id., chap. 308, § 1.) The only defense offered on the part of the defendants, upon the trial, was, that the plaintiff’s claim had not been audited by the board of education of the city of New York, and that there was no appropriation for the purpose of paying it. The former purpose is based upon a provision in section 8 (supra), which declares that the board of education of the city- of New York shall audit and examine, and' the comptroller shall pay, all the obligations of the several boards of education existing in the towns annexed, and which have thus been audited and examined, and which shall have been legally incurred prior to the 1st of January, 1874. It will be perceived, that it is not by the terms of the statute made the duty of the creditor to present his claim for audit. It is made the duty of the board of education to audit and examine, and that of the comptroller then to pay. If this were a proceeding by mandamus, to compel the board of audit or the comptroller to pay, and it could be entertained because the plaintiff had no remedy by action, the objection made would be fatal. The comptroller is -to pay on the audit and examination of the board of education, but the city is to pay the debt *475whether the audit thus contemplated is made or not. It is charged upon the city. The claim herein was presented to him as required by law, and the opportunity was therefore given him to have the audit and examination, if he required it, either for his own protection against a mandamus, or that of the city, if the audit revealed fraud or illegality in the claim made, and which might be interposed as a defense thereto. The plaintiff was not obliged by the act, as suggested, to have the audit made to give him a right of action. This claim was a legal, subsisting one when the act of 1874 (chap. 329, § 8), was passed. It became a debt of the city, and one therefore which the city is bound to pay. The consideration of the obligation was the laud annexed, with its appurtenances. The school-house erected by the plaintiff passed with it. The courts have not favored the retrospective operation of statutes so as to. take away a vested right. (Dash v. Van Kleeck, 7 Johns., 477; 4 Burr., 2560; 2 Shower, 17; 2 Mod., 310; 1 Vent., 330; Ganson v. City of Buffalo, 1 Keyes, 454.) And there is nothing in this case which would warrant a departure from that rule. The plaintiff’s claim was due and unquestioned by the original obligors who made the contract and received the benefit of the plaintiff’s labor and materials. The statute took the consideration of his demand, and transferred it to the city, but at the same time imposed upon the city the duty of paying any debt relating to it legally due. The cases upon which the defendant relies to sustain the point considered, are adjudications on proceedings for a mandamus, and we concede therein their full force, but say they have no application to this controversy. The absence of proof of no appropriation was not urged on the argument, and is not stated on the points submitted. It is regarded as abandoned therefore, but if to be considered, is overruled as untenable so far as the right of the plaintiff to a judgment is concerned.
I think the judgment should be affirmed.
Judgment reversed and new trial ordered, costs to abide event.