By a judgment in a former action the city of Buffalo, its officers and agents, were enjoined from making any other or further payments to the present petitioner upon a certain contract for work at the Perrysburg Tuberculosis Hospital of the city of Buffalo which contract was determined to be illegal. (Fraser v. City of Buffalo, 215 App. Div. 861; affd., 243 N. Y. 554.) The petitioner thereafter filed with the council of the city of Buffalo a petition setting forth that a large amount of work had been done by bim under this contract in good faith and in reliance upon its validity, and that the city was enjoying the benefit of this work, but that he had not received full compensation therefor, and praying the payment of $7,500. The corporation counsel of the city of Buffalo rendered an opinion to the effect that under the provisions of subdivision 5 of section 20 of the General City Law (as added by Laws of 1913, chap. 247), giving to cities the power “ to pay or compromise claims equitably payable by the city, though not constituting obligations legally binding on it,” the city of Buffalo was authorized to compromise or pay the claim of the petitioner. Thereafter, the council voted that a warrant for $7,837.12 be drawn in favor of the petitioner to pay his claim, three councilmen voting in favor of the payment, one against it and one councilman being absent. The amount thus voted is -the exact amount remaining unpaid to the petitioner upon the illegal contract for the work which he has done. The warrant not having been delivered to the petitioner in accordance with this resolution, this proceeding was brought to compel its delivery.
On this record we are of the opinion that the payment voted by the council is a payment upon the illegal contract, and is a payment which has been expressly enjoined.
Nothing in this decision is to be construed as preventing the council of the city of Buffalo from determining that Shaddock has a claim equitably payable by the city for the amount which, the *472city has been enriched at his expense by the labor done and materials furnished by the petitioner. (People ex rel. Dady v. Prendergast, 203 N. Y. 1, modfg. and affg. 144 App. Div. 308; Ward v. Kropf, 207 N. Y. 467, 474.) Such a payment would compensate the petitioner for all his expenses and would free him from loss, but would not allow him profits.
The order should be reversed, with costs to the appellant, and the petition dismissed, with costs to the appellant.
All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Sawyer, JJ.
Order reversed and petition dismissed, with costs to appellant.