Swift v. State , 33 N.Y. Sup. Ct. 508 ( 1882 )

GILBERT, J.:

The claim of Swift is not one for extra compensation, but is limited to the actual liability of the State for work and materials furnished by him pursuant to his contract. The basis of that contract was the proposal of Swift to do the work and furnish the materials at specified prices per cubic yard for one class of work, per running foot for another class, per square 100 feet for another class, etc. That proposal was duly accepted on behalf of the State. Presumably the contract was intended to be in all respects conformable to such proposal. Indeed, such proposal was in terms made a part of the contract. The contract also contains a stipulation on behalf of the State to pay to Swift the aggregate cost of the work and materials therein referred to at the prices specified in said proposal, and the amount thereof is stated at $252,491.68, whereas Swift claims and the board of audit decided that the true amount of such cost is $304,218.57. The statement of the aggregate, cost of the ■work in the contract could hare.been nothing more than an estimate beforehand, and it did not therefore conclude either party as to the actual amount of such aggregate cost. The State did not become bound to pay any sum in excess of the amount of work actually done and the quantity of materials actually furnished, nor could it discharge its obligation under the contract by the payment of a less sum. But, irrespective of the strict rights of the parties to the contract, in law or equity there can be no doubt that the State is morally bound to compensate Swift for all the work done and materials furnished by him. The making of such compensation in the mode pursued, is not the “ granting of any extra compensation ” within the meaning of the inhibition contained in section 24 of article 3 of the Constitution. That provision was intended to prohibit gifts of public moneys by the legislature. We think it was not intended to take away the power of appropriating money for the payment of claims against the State which upon an audit thereof had been ascertained to be just, although the claimant might have become disentitled, as a matter of strict right, to enforce his claim. On the contrary, we are of opinion that ample authority for the latter kind of appropriation is contained in section 19 of the same article. Taking these two sections together we think that it is quite plain that the legislature has plenary power to authorize and regulate by law the auditing of private claims of every description, and to provide means for the payment of such as shall have been audited according to law. Where the claim is one for extra compensation the legislature has no power to impart validity to it by a grant, or to satisfy it except by an appropriation of money, after the claim has been audited according to law. The distinction is between an arbitrary grant of public money and the appropriation thereof to the discharge of an established claim. Instances are constantly occurring where structures have been swept away by fire and storm, or the cost of them has been ruinously increased by a sudden inflation of prices consequent upon events which occurred after they had been begun. The sharing of such losses by employers with contractors is not infrequently done by privare persons. It cannot be deemed incompatible with public duty. We think it was not the intention of the. people in adopting the provisions referred to that the State should be shorn of the power of exercising the same liberality through its representatives under the safeguard of an audit.

We have not discovered any sufficient reasons for disturbing the conclusions of the board of audit. The report of the State engineer and surveyor shows with reasonable certainty that Swift had done work and furnished materials largely in excess of the quantity for which he had been paid. The accuracy of the report and the good faith with which it was made is satisfactorily proved by the verbal testimony of Cooper and Haswell, both of whom assisted in ascertaining the data from which the report was made. All of them were agents of the State, and they appear to have been governed by a desire to protect its interests.

That such report was prima facie evidence in favor of Swift we think admits of no doubt. (Code Civil Pro., § 933; 1 Greenl. Ev., § 483; Laws 1859, chap. 321, § 6.) It embodied the result of-surveys, measurements and estimates ordered in the first instance by a resolution of one branch of the legislature, which action was subsequently recognized and ratified by a concurrent resolution of both branches. The facts on which the board of audit made their decision were .obtained in the only practicable way. The case affords no means of determining that such decision is erroneous.

The award must therefore be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Award by the State board of audit affirmed, with costs.