Ward v. . Kropf , 207 N.Y. 467 ( 1913 )

I dissent from the decision about to be made, as I believe it will afford a precedent for the easy evasion of the safeguards enacted by law for the protection of the public against the unlawful acts of its officials. Whether the grounds on which the original contract between Bennett Shepard was held illegal and void were technical or not I do not know. It is sufficient that the courts have held the contract illegal and void and that the contractors have acquiesced in that decision. Nor do I concede that the contractors were not at fault. On the contrary, they were at fault because it is elementary law, declared everywhere in this country, that persons dealing with public officers must take notice of the powers conferred upon such officers by statute and the limitations imposed on the exercise of such powers. "A person dealing with the agents of a municipal corporation, has no right to presume they are acting within the line of their duty, but must be careful to see that they are acting within the provision of the law which confers authority upon them. (Smith v. City of Newburgh, 77 N.Y. 130, 137; see McDonald v.Mayor, etc., of N.Y., 68 id. 23.) This brings us to the question whether the sewer placed in a village street under an illegal contract remained the property of the contractors or became that of the village. I insist that it became the property of the village. It is also elementary law that structures permanently attached to the land become part of the land. If the contractors had erected a town hall on land of the village, under a void contract, the building would belong to the village. It is sought to distinguish that case from the one before us because the fee of the street is presumptively in the abutting owners while the village (in reality the public) has only the easement. That distinction does not justify the decision about to be made. Doubtless, an article affixed to the soil of the street for the private use of the owner of the soil does not by being so affixed become the property of the public. This is so of a horse block or a hitching post. But, equally doubtless, where the constructions are made in a street in the exercise of the easement the public has therein, which includes the right to lay sewers, water pipes, etc., the title to these structures vests in the public. The case cannot be distinguished from a pavement laid in the street, the title to which, even if laid without authority, vests in the public and cannot be removed by the person who laid it. No more could the contractors enter upon the street, tear it up and remove the sewer. The, to me very curious, suggestion is made that the village must place the new sewer in another street unless it buys the present sewer. I had supposed that the municipal authorities had the right to construct a sewer in every street, and a sewer in another street might be of absolutely no benefit to the property owners along this street. Since the village authorities, before the making of the contract, had the right to lay a sewer in this street, and to lay it in any part of the street proper for the purpose, how could the concededly illegal acts of the officers of the village in making the contract impair or diminish the public easement? It is said that the village authorities have not accepted the work. That is true, and the reason it is not accepted is because the claims of the contractor have been assigned to the village officials, or some of them, who are thus interested in securing payment for the work. It is this very refusal to accept the work, which is good as far as it goes, of which the taxpayer complains and has a right to complain.

The argument that the work thus far done subserves no public purpose is unfounded. It will subserve a public purpose when the rest of the sewer is completed. The argument might just as well be made that the mason work done in the construction of a town hall serves no public purpose because the building will not be habitable without the work of the carpenters and other mechanics. The work of the construction of the sewer might have been let in several contracts each embracing one part, as is the case in the construction of the aqueduct for the city of New York. It would be idle to contend that the part of the tunnel constructed by one contractor subserves no public purpose because it cannot be used without the completion of the remainder. The principle that where complete performance is prevented by law a recovery may be had for benefits conferred by part performance has no application to the case before us. The performance of this contract was not prevented by law; it never was authorized by law, and in the eye of the law was not the contract of the village, but the unauthorized and, therefore, personal acts of certain officials. Neither is the claim that the utilization of the work raised an implied agreement on the part of the village to pay for the work well founded. The cases cited to sustain that doctrine apply to private persons or corporations and not to municipalities or public bodies. "But the claim is made that, as the work and materials were furnished, and the village has received some benefit from them, it is under an implied obligation to pay what they were worth. If this were so, the law could always be easily evaded; that it is not so is no longer an open question in this court." (Parr v. Village of Greenbush, 72 N.Y. 463, 472.) The case is a hard one for the contractor (or rather for the persons who have acquired an interest in his claim) even though he has fallen into misfortune by his own carelessness in failing to see before executing the contract that the public officers had complied with the requirements of the law. But he is not without a remedy. Though he cannot now maintain any action in the courts, he may apply to the legislature, who, if his claim is equitable, may recognize it and direct its payment. This was the case inWrought Iron Bridge Co. v. Town of Attica. (119 N.Y. 204.) A bridge having been built under a void contract, the contractor was defeated in an action on the contract; but the claim having been ratified by the legislature, it was subsequently allowed to recover. No one imagined, however, that the contractor had the right to remove the bridge or prevent the public from passing over it, a principle which is held in the decision about to be made. The case does not fall within section 262 of the Village Law, which provides for the payment of a sewer constructed wholly or partly at private expense. That has no application to a sewer assumed to be constructed for the public and not for the use and at the expense of private parties.

WERNER, CHASE, COLLIN, CUDDEBACK and MILLER, JJ., concur with GRAY, J.; CULLEN, Ch. J., reads dissenting opinion.

Judgment affirmed, with costs.