NEW YORK SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
August 7, 1969
STEINER EGG NOODLE CO., INC., RESPONDENT,
CITY OF NEW YORK ET AL., APPELLANTS
Steiner Egg Noodle Co. v. City of New York, 57 Misc. 2d 479, reversed.
Streit and Quinn, JJ., concur in opinion Per Curiam ; Markowitz, J., dissents in memorandum.
Author: Per Curiam
The plaintiff corporation received a letter in February, 1963, from the then Commissioner of Public Works of the City of New York (not a named defendant in this action), advising it of plans of the Highway Department to grade, pave and lay sidewalks in the vicinity of the New York City Terminal Market in the Hunts Point Section of The Bronx, the cost of which would be at the general public expense and not by assessment against abutting property owners. The letter noted that the work of paving and laying sidewalks would be in conformity with the established legal grade; but since the plaintiff's property, among others, had been improved in conformity with grades other than the legal grade, minor adaptations would have to be effected on plaintiff's property to harmonize existing land slopes and improvements with the sidewalks to be laid at legal grade. The letter enclosed a form of authorization permitting the city's contractor to enter upon plaintiff's property and carry out the indicated work of adaptation; all obstructions on plaintiff's property, such as fences, interfering with the work to be removed by the city's contractor at no expense to the owner. Plaintiff duly executed and returned the form of authorization which the then Commissioner of Public Works had enclosed; and, in prosecution of the indicated work, the contractor thereafter entered upon plaintiff's land. Some two and a-half years later, in November, 1965, plaintiff was notified by the Department of Highways of the City of New York of the lack of a sidewalk in front of its premises and its obligation under section 230 of the City Charter to install such sidewalk or become liable for the cost of such installation by the city. The plaintiff, relying on the February, 1963 correspondence between it and the then Commissioner of Public Works, claimed a contractual undertaking by the city exempting plaintiff from liability for the cost of the sidewalk. The city regretfully advised plaintiff that the February, 1963 letter of its then Commissioner of Public Works had been based on a misconception and erroneous view of the law and that the city was prohibited from assuming the cost of sidewalk improvements which, under the correct view of the law, was the inescapable obligation of the abutting property owner. Plaintiff installed the required sidewalk in front of its premises at a cost of $2,250, which it now seeks to recover in damages from the City of New York and Bradford W. Clark as Commissioner of the Department of Public Works of the City of New York, upon an alleged breach of contract and by reason of fraud and deceit.
Judgment was given after trial for the plaintiff against the City of New York. No mention is made in the record of any disposition of whatever claim may be inferred to have been asserted against the defendant Bradford W. Clark, etc. The title of the action has not been amended to delete his name as a defendant, nor has the implied cause of action against him been discontinued or dismissed, nor does the decision or judgment make mention of him, other than to persist in retaining his name as a defendant in the title. Clearly no cause of action is stated, nor any semblance of proof offered from which a cause of action may be inferred, against Bradford W. Clark, etc., who was not the Commissioner of Public Works of the City of New York at the time plaintiff's alleged causes of action arose. Judgment should have been granted the defendant Bradford W. Clark, etc., dismissing the complaint against him.
The cause of action in fraud and deceit against the City of New York because of the alleged misrepresentation by its then Commissioner of Public Works that "the complete cost of the work will be borne by the City of New York and will not be assessed against the abutting property owners" does not lie; for one thing, at the worst, it is a misstatement of a matter of law presumed to be so well within the knowledge of plaintiff as to prevent it from being deceived thereby. A long, impressive line of cases beginning with McDonald v. Mayor (68 N. Y. 23) has firmly established as fundamental the principle that one dealing with a municipality through its officials must take great care to learn the true nature and extent of their power and authority. One relies on the self-asserted, naked representation of an official's power and authority to bind the municipality at one's peril. It is recognized that this principle has worked hardship in the past and may in the future, but it is a rule of necessity that moral obligations alone cannot bind the municipality since "no legal obligation arose." (Seif v. City of Long Beach, 286 N. Y. 382, 389; 40 N. Y. Jur., Municipal Corporations, §§ 822, 825.) It is indisputable that the Commissioner of Public Works in 1963 had no authority to waive the provisions of law requiring abutting owners to bear the cost of sidewalk improvements and "an unauthorized act of a public official precludes an action in deceit" (Brill v. Wagner, 5 Misc. 2d 768, 771, citing Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45).
Turning to plaintiff's allegations of a breach of contract, it is to be noted that the only discernible consideration possibly running from plaintiff to the city for the latter's supposed promise to waive the requirements of law and lay a sidewalk at the general public expense, is the plaintiff's authorization to the city's contractor to enter upon plaintiff's property for prosecution of the work of grading the abutting street. But plaintiff was legally bound by the provisions of the Administrative Code of the City of New York to permit such entry upon its property for the work in hand in any event, and it is elementary that doing or promising to do what one is already under legal obligation to do can never constitute valuable consideration.
Even if we pass the infirmities inherent in the assumed exchange of promises, or promise and performance, between plaintiff and defendant city, as well as the constitutional prohibition against gifts by the city to a private corporation (N. Y. Const., art. VIII, § 1), we find the city had no capacity to contract for a sidewalk improvement such as was here contemplated except upon terms approved by the Board of Estimate (New York City Charter, § 230, subds. a and e). The admitted absence of Board of Estimate approval nips in the bud any claim of the burgeoning of a contractual relationship between plaintiff and the defendant City of New York.
If the exchange of writings between plaintiff and the Commissioner of Public Works upon which plaintiff relies to spell out its claim of contract, with the city, be so stripped of its character as to fall outside the embrace of section 230 of the charter and then so tortured out of context as to be construed as the furnishing of work and materials by plaintiff to the city at the latter's request in a sum less than $2,500, it escapes the requirement for submission as a sealed bid for public letting (New York City Charter, § 343, subd. a) but runs afoul of the requirement that though it "may be procured on order awarded to the lowest responsible bidder upon bids submitted" (§ 344, subd. a) * * * "no expenditure for work, labor * * * shall be made unless the necessity therefor be certified to by the agency for the use of which they are intended." (§ 344, subd. b.) The impediment arising from the lack of the Comptroller's certification of an unexpended appropriation to pay for the contract is removed, when the amount involved is less than $2,500, only when the contract is by public letting. (Administrative Code of City of New York, § 93c-3.0.)
Under no view of the correspondence between plaintiff and the Commissioner of Public Works can the city be held bound by contract to reimburse plaintiff for the cost of laying the sidewalk abutting upon its premises.
The judgment in favor of plaintiff against the defendant City of New York is reversed and judgment is directed to be entered dismissing the complaint against the City of New York and Bradford W. Clark as Commissioner of the Department of Public Works of the City of New York, with $30 costs.
Judgment reversed, etc.
Jacob Markowitz, J. (dissenting). I dissent and would affirm.
Plaintiff is the owner of certain premises in The Bronx. Some time in February of 1963, it received a letter signed by the Commissioner of Public Works stating as follows: "The Department Public Works as agent for the Department of Highways will soon let a contract for the laying of sidewalks and the grading and paving of Halleck Street near the site of the New York City Terminal Market in the Hunts point area of the Bronx. The complete cost of this work will be borne by the City of New York and will not be assessed against the abutting property owners.
"The work will be done in accordance with the legal grade established for Halleck Street. Not all abutting properties are improved in accordance with the legally established grade. Where an abutting property is not improved in accordance with the established grade it will be necessary for the City's contractor to enter temporarily on private property to cut or fill or both as the case may be. Since your property abuts on the sidewalk and street area where the work is to be done it will be necessary for the contractor to do the following work in the sidewalk area and within your property. "Block No. 2772 Lots Nos. 260 & 256: Sidewalk to be constructed at an elevation similar to that existing at the south end of the property and a maximum of 15" below the existing elevation in front of the open area and meeting the existing sidewalk on Oak Point Avenue. This will result in slopes in front of the open area approximately 2' to 3' within the property. Curb cuts and driveways in the sidewalk will be provided in accordance with the curb cut permits. A 5" step will occur at the northern doorway of the southernmost building. The sidewalk will be at virtually the same elevation as the bottom of the other doorway. All obstructions on your property that may interfere with this work, such as fences, will be removed by the City's contractor at no expense to the owner. Fences removed will be deposited at a location on the property designated by the owner.
"There is enclosed an authorization which should be signed by you and returned to this office in the enclosed envelope. This authorization will facilitate the construction of the sidewalk and will permit the City's contractor to enter upon your property for the purpose of carrying out the work outlined above. We would appreciate receiving the authorization as expeditiously as possible."
Plaintiff gave the requested auuthorization and subsequently his property was entered upon existing concrete ramps were ripped up. The city never replaced the portions of the existing sidewalk which had been broken up and removed, and did not install the sidewalk, as promised in the letter.
Some time in November of 1963 plaintiff was notified by the Department of Highways of the existence of a sidewalk violation and of his responsibility under the City Charter to correct the condition. The notice also advised plaintiff that, upon his failure to comply, the work would be done by the city and the cost will be a charge against the plaintiff.
On November 24, 1965, plaintiff's attorney wrote the Department of Public Works, advising it of the previous agreement to replace the sidewalks in conformity with the new grading project, at no costs to the property owner. Several days thereafter, the Department replied that "we are prohibited by law from making any improvements in the sidewalk area since the law imposes this obligation upon the abutting property."
Plaintiff thereupon had the sidewalk installed at the cost to itself of $2,250, and proceeded to sue the city.
It is the opinion of the majority that, since the City Charter places upon abutting owners the obligation of the construction of sidewalks (New York City Charter, § 230) and further requires the city to enter into contracts with abutting owners for installation of sidewalks "upon such terms and conditions as may be approved by the board of estimate" (subd. f), there having been no Board of Estimate approval, the contract is a nullity. It does not appear, however, that the agreement here in question was one requiring Board of Estimate approval. It was not as subdivision f describes a contract, "with the owners of premises abutting on streets for such installation, reconstruction, repaving or repair of sidewalks," but rather an agreement to grant the city a license to invade private property for a grading job, the consideration for which would be replacement and installation of sidewalks. Taking as I do the position that this contract is one that does not require Board of Estimate approval, I consider the reference by the majority as to public letting not germane.
Accepting as authority McDonald v. Mayor (68 N. Y. 23, 27, supra), that it is incumbent upon "those seeking to deal with a municipal corporation through its officials [to] take great care to learn the nature and exteent of their power and authority," nevertheless I am of the opinion that the agreement was not of such magnitude so as to render unreasonable the fact that plaintiff did not go beyond the ostensible authority which the Commissioner appeared to affect. This is not a situation dealing with a village board, town council or small municipality. To require the same inquiry with respect to a small matter of one dealing with a megapolis places an unreasonable burden upon a taxpayer who had the right to rely on the Commissioner's authority. Furthermore, considering the amount involved, to challenge the authority of the Commissioner would discourage reasonable co-operation with constituted authorities.
It is also defendant's position that, if the sidewalk be considered consideration for the licenses, it must be deemed valueless consideration and therefore invalid under section 1 of article VIII of the State Constitution, which prohibits a city from giving money or property to a private party. In this regard, the city argues that the authorization by plaintiff to permit the city to come upon its property was of no valuue because the Commissioner had such right of entry without an authorization under the Administrative Code of the City of New York, and that, in any event, plaintiff did not prove that anybody connected with the City of New York entered plaintiff's property.
Insofar as the former argument is concerned, the fact that a public corporation has some awesome power conferred by law does not estop it from seeking to obtain by private contractual means what it might otherwise obtain by flexing its sovereign
[63 Misc. 2d 163 Page 170]
--> powers in a court action. The right of a city to condemn property does not preclude its right to privately contract to purchase property. In this instance it contracted for a license to enter land.
As for the second argument, the testimony at the trial and the inferences therefrom strongly indicate that contractors appeared on plaintiff's premises pursuant to instructions by defendant.
As a contractual commitment was made by defendant city, it should be held accountable. Accordingly, the judgment of the trial court should be affirmed.
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