Appeal from a judgment in plaintiff’s favor. The facts are, that the plaintiff, under a contract with the department of public works, performed the work sued for, and the answer of the defendants is, that in substance the contracts are made without advertising for, or inviting sealed bids, as required, by section 104, chapter 137, Laws of 1870. The further defense that the work was charged at extravagant prices, was abandoned on the trial and on the appeal.
The claim on the part of the city is, substantially, that in order to protect itself from the ordinary liability, which, as a corporation, it might be under, for contracts improvidently made by its agents and servants, section 104 was passed; and, the intent and object of that law, is, that in cases calling for expenditures of $1,000, unless three-fourths of the common council otherwise decided, sealed bids should be invited and the work done under some of these bids. Whatever may be the argument in the case as to the price being reasonable, the court can only look at the plain words of the act, and, no matter how meritorious the plaintiff’s claim, follow that law; and, unless there is something that takes this work out of the ordinary rule, the plaintiff must fail.
*26The plaintiff claims that by an act, subsequent to that above quoted,* there is a provision authorizing the comptroller to borrow $500,000, for the improvement of the lower reservoir, and for increasing the supply of water in the lower part of the city, under the direction of the department of public works, under which act this work was done; and plaintiff contends, under the authority of Navano v. Van Nort, † that the provision renders advertising for bids unnecessary. In that case, the court held, expressly, that the act under which that work was done, placed a discretion in the commissioner, inconsistent with doing the work under such bids; in fact, holding that the terms of the act expressly permitted the work being so done.
In this case, the section relied on, to bring the case within the Navano v. Van Nort case, vests no discretion in the commissioner, other than that in regard to any other work which the law places in his department. All work to be done under the commissioner, is to be done under such bids, and it is hard to see any distinction between the work here provided for and any other. The section 104 is one of great importance to the city, acting through its agents, and one, the policy of which the court is bound to sustain. The work here is the ordinary work of the department, and should have been done in the ordinary way. The plaintiff furnishes no excuse for the mode in which his contract was made, and he must fail. Judgment should be reversed, and new trial ordered.
Judgment reversed and new trial ordered, costs to abide the event.
§ 6, chap. 383, Laws 1870.
64 Barb., 205.