[dissenting].—I still remain of the opinion that the Board of Health had no power to authorize the City Inspector to employ Woodruff to remove the contents of all the privies in the city of New York. I have no doubt of their power to order any act to he done, essential for the preservatian of the health of the city, and where a public emergency demands it, to direct a contract to he made at once, without waiting for the authority of the Common Council, or for the making of a contract by the heads of departments, in the mode prescribed by statute. The general power conferred upon them is in these words : “ When they shall judge it necessary, they may cause any matter or thing within the city, that may be putrid or otherwise dangerous to the public health, to be destroyed or removed.” [Laws of 1850, p. 609.] ( It rests with them alone to judge of the necessity, but if must appear from their action, or from what they directed to he done, that they adjudged that the matter or thing directed to be removed was putrid or otherwise dangerous to the public health. This does not follow from the preamble and resolution which they adopted. - The preamble declares that, whereas, the City In-specter has reported at his office over one thousand sinks and privies full, and no provision being made by the Common Council for the carrying away of their contents, and the nuisanee has become intolerable, therefore, resolved. How, the nuisance set forth in this preamble is the fact that over one thousand sinks and privies in the city were full \ and if their resolution had directed that the contents of these privies should *255be removed, it would be inferred -in consonance with the preamble, that they had adjudged that their continuance in that state would be prejudicial to the public health, and that they had ordered their contents to be removed as a matter of public necessity. But their resolution went far beyond this. It empowered the City Inspector to employ Woodruff to remove, temporarily, or until further ordered by them or by the Common Council, all the contents of sinks and privies in the city. It contemplated that this was to be done unless they or the Common Council ordered otherwise. It did not direct the emptying of the thousand or more that were full, but the.removal of the contents of all, whether full or not—a task that required and actually took more than a year to accomplish. Their preamble certainly did not indicate that they considered this essential for the preservation of the public health, nor could it he deemed so, unless suffering anything to remain in a privy could be regarded as having that effect. A work so extensive as this, involving the expenditure of a very large sum of money, and which required more than a year to perform, was one to he entered into under the authority of the Common Council, and to be put up to public competition in the mode provided by statute. I am disposed to give a broad and liberal construction to the power of the Board of Health, but I think it would be exceeding all just bounds to recognize their authority to make such a contract as this. It is true that the resolution declares that the City Inspector is to employ Woodruff to remove, temporarily, all the contents of the sinks and privies ■ in the city, or until further ordered by the Board of Health or the Common Council, but it is precisely in this way that the provisions of the statute are defeated which require all contracts made under the authority of the Common Council for work to be done to be put up to public competition, if it involves an expenditure of more than $250, and I cannot regard as a legitimate exercise of the power of the Board of Health the empowering of work to be done not embraced in the nnisanee set forth in their preamble, and which it is very manifest was not Remanded upon any ground of pressing public necessity.
Judgment reversed, and new trial ordered.