source: Caselaw Access Project

author: Wright, J. Hogeboom, J.

license: Public Domain

text:
    Richard Liddle v. The Market Fire Insurance Company.
    One of the conditions annexed to a policy of insurance on property in Brooklyn was, that insurances on property out of the cities of New York and Brooklyn were to be made upon the written representations of the applicant; that insurances once made might be renewed, and that all insurances, original or renewed, should be considered as made under the original representation in so far as it might not be varied by a new representation, in writing, which it should be incumbent on the assured to make in all cases where the risk had been changed either within itself, or by the surrounding or adjacent buildings. And that if, at or before the time of renewing any policy, where the risk had been increased by the erection of buildings, or by the use or occupation of the premises insured or the neighboring premises, the assured should fail to give information thereof, the ' policy and renewal should be void, and of no effect. There was no representation made, when the policy was issued; the risk being taken on the report of the company’s surveyor.

      Held, that there was nothing in the contract of insurance that bound the assured to give written notice to .the company, at the time his policy was renewed, of the erection of a bakery, by which the risk was "increased. That the omission to give notice of the fact in written form was no breach of any warranty; and that the stipulation for notice, at or before renewal, of an increased risk occasioned by the use or occupation of neighboring premises, was satisfied by an oral communication of the fact to. the company.

      Held, also, that the first clause of the condition requiring the assured, upon a change of risk as specified therein, to make a new representation in writing, had no application to an insurance on property in the city of Brooklyn, where the insurance was effected not upon any written representations of the insured, but upon a survey by the company itself; the company, in the latter case, assuming the risk upon its own survey, without any representations of the assured.

      Held further, that if the true construction of the condition of the policy required the assured to give information in writing of the erection of the bakery, the company might waive a strict compliance—they having power to waive any condition of the contract in their favor.

      Appeal from a judgment of the Superior Court of New York in an action on a policy of insurance.

    ■ On the 28th December, 1854, the defendant insured the. plaintiff for one year, to the amount of two thousand dollars, on his stock, fixtures, &c., “ contained in the premises occupied by him in the westerly end of the brick building known as the City Central Hall, situate on the corner of Fulton avenue and Elm place, city of Brooklyn.” The policy provided that the conditions annexed were “to be used and resorted to, in order to explain the rights and obligations of the parties ” thereto. The twelfth condition provided that “ all insurances, original or renewed, shall be considered as made under the original representation, in so far as it may not be varied by a new representation in writing; which, in all cases it shall be incumbent on the party to make where the risk has been changed, either within itself, or by the surrounding or adjacent buildings. And if,' at or before the time of renewing any policy of insurance on property where the risk has been increased by the erection of buildings, or by the use or occupation of the premises insured, or of the neighboring premises, the ■insured shall fail to give information thereof, said policy and renewal shall be void and of no effect.”
    On the 28th December, 1855, the policy was renewed for one year, and on the 28th December, 1856, for another year. On the 6th May, 1857, the building and the goods and property in it, belonging to the plaintiff, of the kind and description of the property referred to in the policy, and worth $5,000, were damaged and destroyed by fire.
    The cause was tried before Mr. Justice Slosson and a jury, on the 9th June, 1859. The plaintiff was sworn as a witness in his own behalf, and proved the occurrence on the 6th May, 1857, óf the fire mentioned in the complaint; and gave evidence of the amount of loss he had sustained by such fire, and that the amount of his loss upon the property insured exceeded the sum insured by the policy. On his cross-examination, he testified that the fire was caused by a bakery in the easterly end of the building, called Berdan’s Steam Bakery. The building was one hundred and twenty feet long; this bakery was in the easterly end of it, the opposite end from his store. The bakery was put in the building about eight months before the fire, and previous to the last renewal of the policy.
    Being re-examined by his counsel, he was asked: Did you, previous to the last renewal of your policy, call the attention of the defendants to the fact of this bakery having been put into the building? The defendants’ counsel objected to the question, as calling for evidence of a verbal notice to the defendants, whereas by the terms of the policy and of the twelfth condition thereto annexed, all notices of increased risk were required to be in writing. The court overruled the objection, and the defendants excepted.
    The witness then testified, in substance, that previous to the last renewal he received'from the company a notice that his policy was about to’ expire. He wrote on the back of the notice “ renew and re-survey,” signed his name and put it into an envelope to send to the company’s office. _As he was going over next day he concluded not to send it, but took it over himself, and handed it to Mr. Taylor, the secretary of the company; but he can’t say that Taylor read the . words he had written, “ renew and re-survey.” He took the policy with him, at the same time, and told the secretary he wanted it renewed. He told him, also, that he had better send some one over to Brooklyn and look at the building; that there was an oven being erected there. Taylor said, “ we will let our surveyor go over and see it.” The witness conversed with the secretary about the bakery; told him that it was an ingenious piece of machinery; that it would do a large amount of work with a few hands, and" that he would like to show it to • him. Taylor remarked that he had not been in that part, of Brooklyn for some time; but did not say he would come. Nothing was said about his having to pay an extra premium on account of the bakery; and there was no hesitation on Taylor’s part to continue the insurance. The witness left the policy at the office, and called for it some days after; found it had been renewed; took it and put it in his pocket without looking at it, and went away. He did not then pay the premium, but did a few days afterwards. -
    After further testimony as to the amount of loss, the plaintiff rested his case. The defendant’s counsel moved for a non-suit on the ground that no written representation as to the increased risk had been made to the company, or consent therefor endorsed on the policy. The court overruled the motion and the defendants excepted.
    The defendants then called as a witness' their secretary, Taylor, who testified that the plaintiff never notified him of a bakery being in the building, in writing or otherwise, in or out of the office. The additional risk of an ordinary bakery would increase the rate of premium forty cents on $100. The duty and custom of the company on receiving notice of an increased risk would be to send and re-survey the premises; a bakery is a special hazard. At the time of the renewal of the . policy, Joseph H. Storms was the surveyor of the company. The company made a survey when the plaintiff’s policy was issued, and subsequently when there was a communication made with the adjacent store.
    Joseph H. Storms testified that he was surveyor of the defendants’ company in 1856 and 1857. He made a survey of the premises when the original policy was issued, and afterwards when the communication was cut through. No bakery there then. Never had any orders from the company to survey at any other time.
    It is conceded that there was no representation in writing when the policy was issued, and that risks in New York and Brooklyn are taken upon the report of the company’s surveyors.
    At the close of the testimony, ,the defendants’ counsel requested the court to charge the jury, that if they believed that at the time of the last renewal of the policy the risk to the building had been increased by the' fact of the steam bakery having been put in, they should find for the defendants, as no evidence had been given that a written statement of that fact had been made to the company.
    The court refused so to charge, and charged the jury that if they should find that the risk had been so increased, it was the duty of the plaintiff to communicate that fact to the company at the time of applying for the last renewal. That the provision requiring such communication to be in writing might be waived by the company, if they saw fit to do so; and that if the plaintiff did fully and fairly communicate the fact, and no objection was made to the communication not being in writing, his right to recover would not now be defeated by reason of such communication not having been in writing. The defendants’ counsel excepted severally, to the refusal to charge; and to the charge as given. The jury found a verdict for the plaintiff.
    Judgment being entered, on appeal to the general term, the same was affirmed. The defendants -appealed to this court.

      J. T. Williams, for the plaintiff.

      S. P. Nash, for the defendants.
   Wright, J.

If the exceptions raise any question to he considered, it is but a single one. The policy covered the plaintiff’s stock, &c., in the westerly end of a building, some 120 feet in length, known as City Central Hall, in Brooklyn. The plaintiff occupied the store in this building, cornering on Fulton avenue and Elm place. Intermediate the first and second renewals of the policy a steam bakery was introduced into the easterly end of Central Hall. On the trial the plaintiff testified, that upon calling at the defendants’ office to have his policy renewed the last time (having received notice from the company that it was about expiring), he informed their secretary verbally of the erection of the bakery. The question eliciting this testimony was objected to, on the ground that all notices of increased risk were required to be in writing; and after the evidence was in, and the plaintiff had rested, a non-suit was moved for, on the ground “that no written representation as to the increased risk had been made to the company, or consent, therefor endorsed on the policy.” Again, at the close of the case, the court was requested to charge, that if the jury believed that at the time of the renewal of the policy the risk to the building had been increased by the fact of the steam bakery having been put in, they should find for the defendants, as no evidence had been given that a written statement of that fact had been made to the company.” The -point, therefore, sought to be raised was that the risk being increased by the use of the neighboring premises, the plaintiff was required, by his contract of insurance, to give notice to the company in writing of the fact at the time of the application for the second renewal of the policy; and having omitted to do so, such renewal was wholly void, and evidence of a verbal communication inadmissible. It was not that the evidence offered was insufficient to justify the submission of the question of waiver of written notice ‘ to the jury, but that a written statement by the plaintiff of the changed risk was an indispensable pre-requisite to the renewal taking effect. It. is true, that the defendants excepted to the instruction of the judge, that if the plaintiff did fully and fairly communicate the fact of the increased risk (if it were one), and no objection was made to the communication not being in writing, the plaintiff’s right to recover would not be defeated by reason of such communication not having been made i'n writing. This, however, was, in substance, an instruction that the company might waive a strict compliance with the condition, and if the plaintiff verbally gave full information of the increased risk before the renewal, and no. objection was made that the information was not in writing, but the company renewed the policy after such notice, they waived a strict complianee, and could not afterwards insist in bar of the action that the notice should have .been written and not verbal. The exception did not reach the point now mooted, that the evidence did not justify the submission of the question of waiver to the jury, and that the secretary of the company had no right to waive any of the formal requirements of the policy.

The only question, then, that can be claimed to have been raised by the exceptions is this; whether (if the risk was increased by the erection of the bakery) the omission of the plaintiff to give written notice to the company of the fact, at or. before the last renewal of his policy, absolutely barred his right to recover.

It will not be pretended that any obligation rested on the insured to inform the company, in writing, of the erection of the bakery, unless imposed by the contract of insurance. If it were a condition of the contract that he should do so, and there was no waiver by the company, a failure to strictly comply would render the policy and renewal void and of no effect. Conceding, then, that setting up the bakery in the easterly end of Central Hall increased the risk, a primary inquiry is whether the plaintiff’s con-" tract bound Mm to give written information to the company of the fact, at or before the time such contract was renewed in December, 1856. I ain inclined to think that it did not. The first condition annexed to the policy provided that insurance on.property, .out of the cities of New York and Brooklyn, were to be made upon the written representar tians of the applicant as to the nature, construction and' materials of the building containing the property to be insured; its situation with respect to contiguous buildings, their construction and materials, and whether any manufactory was carried on within or about it; and in relation to the insurance of goods, whether they were of the description denominated hazardous, extra hazardous, or included in the memorandum of special rates. The twelfth conditian provided that.insurances once made might be renewed, and that all insurances, original or renewed, should be considered as made under the original representation, in so far as it may not be varied by a new representation, in writing, which in all cases it shall be incumbent on the party insured to make when the risk has been changed, either within itself or by the surrounding or adjacent buildings. It is obvious' that this provision relates to a case where the property is insured upon the written representations of the applicant. The provision is that insurance, original or renewed, is to be considered as made under the original representation of the party insured, in so far as it may not be varied by a new representation, in writing; and if the risk has been changed, either within itself or by the surrounding or adjacent buildings, intermediate the issuing of the original policy and the application for renewal, it is made incumbent on the party making the original representation in writing to make a new one in the same form. This is all that was intended to be provided for, and the reason therefor in this particular case is plain. The risk is taken upon the representations of the insured, which amount to a warranty as to the actual nature and situation of the thing insured, When tailing or renewing the risk the company rely upon the representations, and not upon any report of their own surveyors, and any misrepresentation or concealment of matters required by the terms of the policy to be fully and truthfully stated, would be a breach of warranty and avoid the insurance. The plaintiff’s insurance was on property in Brooklyn, and it is conceded that there was no representation in writing when the policy was issued, and that the risk-was taken on the report of the company’s surveyor. There was, in his case, no original representation in writing, or no new representation to be made in the same form, in case the risk had been changed either in respect to the kind of property insured, or its situation as to surrounding or adjacent buildings. I think the first clause of the twelfth condition requiring the party insured, upon a change of risk as specified therein, to make “a new representation in writing,” has no application to an insurance on property in the city of Brooklyn, when it is conceded that the insurance is effected not Upon any written representations of the insured, but upon a survey by the company itself. In the latter case, the company assumes the risk upon its own survey, without any representation of the assured. The insurance is not to be deemed made in pursuance of his representations; and if the risk be varied, it is not a fair construction of the clause in question that it requires him to make any representation whatever as to the nature of it. It is a change of the original risk, either in the description of the insured property, or from its situation to contiguous buildings, or the uses' those may be put to, on which to- base the contract of insurance, that the clause requires to be stated in writing, and as to these matters, in insurances on property in Brooklyn, the company relies on its own survey. It is, of course, important in all cases that the company should be informed, before a policy is renewed, of any increase of risk intermediate the issuing of the policy and the renewal by the use or occupation of the premises insured or of the neighboring premises; and this is stipulated for in the last clause of the twelfth condition. It is provided that if the'assured shall fail to give information of an increase of the risk by the erection of buildings, or by the use or occupation of the premises insured or of the neighboring premises, the policy and renewal shall be void and of no effect. This, however, is not a stipulation that the assured shall give written notice. Indeed, in insurances on property, in New York and Brooklyn, where the company make their own surveys, a verbal notice that neighboring premises were being used in such a way as would be likely to increase the risk, is all that could be, reasonably required. The object is to give the company information of erections intermediate the issuing of the policy and its renewal, so that they may re-survey the premises before determining upon issuing the certificate of renewal. When the company is its own surveyor, and makes or renews insurances upon surveys made by itself, the object in view is attained as well by a verbal as a written notice. The attention of the company is directed by either form of notice to what may increase the risk, and call for a further survey, before renewing the policy. For any of the purposes of the parties, a written is no better than a verbal notice. Had the plaintiff, in this case, instead of stating verbally that the bakery had been put into the eastern end of Central Hall, stated the same fact in writing, the paper would not have gone on the files of the company; or if it had, it would not have concluded either party. The question whether there had been a failure on the part of the assured to comply with the last clause of the twelfth condition of the policy would still have been an open one.

I think, therefore, there was nothing in the plaintiff’s contract of insurance that bound him to give written notice at the time his policy was renewed, that the bakery had been put in the easterly end of the building known as the City Central Hall; that, in his case, the omission to give notice of the fact in written form was no breach of any warranty; and that the stipulation for notice, at or before renewal, of an increased risk occasioned by the use or occupation of neighboring premises was satisfied by an oral communication of the fact to the company.

But if this is an erroneous construction of the provisions of the policy, and the twelfth condition required the plaintiff to give information in writing of the erection of the bakery, there is no doubt the company might waive a strict compliance. This is not questioned by the defendants' counsel. They could waive any condition of the contract in their favor. One of the conditions of this contract was, that no insurance, whether original or continued, should be considered as binding until the actual payment of the premium; but there is no doubt that giving credit for the premium by the delivery of the policy without payment would be a waiver of the condition. It is said that the evidence was not of the character required to constitute a waiver, but no such point was distinctly raised at the trial. The ground taken—and the only one—was, that under no circumstances could the plaintiff recover if the jury believed that at the time of the last renewal of the policy the risk to the building had been increased by the fact of the steam bakery having been put in, he having-omitted to make a written statement of that fact to the company.

I think the judgment should be affirmed.

Hogeboom, J.

The case presents three exceptions for consideration. 1st. To the admission of paroi evidence of notice of the increased risk. 2d. To the refusal to non-suit for the want of a written representation as to such risk. 3d. To the charge and refusal to charge.

The paroi evidence was, I think, properly admitted; as, independent of the question whether a written representation was necessary by the terms of the policy,, it would be proper to show a waiver of such representation by the acts of the parties, and the testimony tended in that direction. The direction upon the card to “.renew and re-survey;” the express request for renewal; the. explicit communication of the erection of the bakery; the request to the defendants to examine, the premises; the secretary’s promise to send the company’s surveyor to examine the premises; the subsequent renewal of the policy in the light of all this information, constituted together a body of testimony which was admissible on the question of waiver.

The same testimony, as yet unexplained or uncontradicted, furnished a sufficient reason for refusing the motion for a nón-suit, and for subsequently refusing a peremptory instruction to the jury to find for the defendants on account of the omission to communicate in writing the fact of the increased risk, in case they should find such increased risk existed.

The more serious difficulty arises on the charge of the judge that a full and fair verbal communication by the plaintiff to the defendants of the facts constituting the increased risk, if not objected to on the ground that it was not in writing, was, in effect, a waiver of a written communication.

I think a- charge in so direct and unqualified a form was error, but did not prejudice the defendants, for reasons to be hereafter stated. The parties had taken pains, by the terms of their contract, to require a written statement of the facts constituting the increased risk. There, were rear sons for such requisition and mutual protection arising from the frailty and unreliability of oral evidence; and the provision ought not to be regarded as intentionally dispensed with, except upon clear proof of facts constituting an express waiver, or inconsistent with an enforcement of this condition of the contract. There may have been—think there were-—facts on which the plaintiff could'properly ask to go to the jury on the question of waiver; and the omission to call for a communication in writing was one. But such omission was not, I think, standing By itself and alone, to be regarded, as the judge in effect instructed the jury, necessarily sufficient and conclusive of an intent to waive a written statement of the facts constituting the increased risk.

The plaintiff’s counsel attempts to sustain the decision of the court below by insisting not only that here was ample evidence of a waiver, but also by insisting 1st. That the contract did not, in the present instance, require a written representation. 2d. That a failure to comply with that condition of the contract did not avoid the policy. These suggestions are not without force.

The twelfth condition, on which the question arises, declares that all insurances, whether original or renewed, shall be considered as made under the original representation, unless varied by a new representation in writing, which ñew representation it shall be incumbent on the party insured to make in all cases where the risk has been changed.

Mow, there is nothing in the case which shows that the original insurance was effected by means of any original representations in writing, or any original representations whatever. It may be that it was procured, as was allowed by the conditions of insurance as to all property in Mew York or Brooklyn, upon a simple request for that purpose, accompanied by the examination and survey of the defendants’ own officers; and that it was upon the latter alone that the defendants relied, when they issued the policy. If so, then the renewed policy would stand upon the same basis, except that the insured would have been guilty of a non-compliance with this clause of the contract in not making a statement in writing of the circumstances producing a change of the risk. It is nowhere stated that such noncompliance by omitting to make a statement in writing shall avoid the policy; nor was it so intended, as will presently be seen by- examining the next succeeding clause in the twelfth condition. Hence there was no fraud, misrepresentation, or breach of warranty upon which the defendants could avoid the policy.

But there is a further clause, as the plaintiff contends, and I think properly, which declares what in reference to this subject shall avoid the policy and its renewal, and it is this: If at or before the time of the renewal the risk has been increased and the assured shall fail to give information thereof said policy and renewal shall be void and of ho effect. This information need not be communicated in writing; the terms of the policy do not require it. The verdict of the jury has substantiated the fact that it was vei'bally given, and hence the policy remains in force.

It is suggested that the policy becapie void under the fifth condition, which requires all previous or subsequent insurances tó be endorsed on the policy, or otherwise acknowledged in writing; and that as an additional insurance had been effected by the plaintiff, at a higher rate of insurance for the increased rish, and such increased risk had not been noted on the plaintiff’s policy, it became void. But there is nothing in the fifth condition which requires either the rate of insurance or the increase of the rish in another company to be endorsed or acknowledged on the policy. It appears to be sufficient, as was done in this case, to note the fact and amount of such additional insurance; the object being to make a proper distribution of the amount of the loss between the two companies.

While, therefore, the court below erred in the reason given for the conditional instruction given to the jury in regard to the plaintiff’s right to recover, to wit: a waiver of a written communication as to the increased riák by not objecting to a verbal notice, yet inasmuch as the substance of the instruction was correct, to wit: that the plaintiff’s right to recover would not be defeated provided he fully and fairly communicated to the defendant the fact of the increased risk, though not in writing; I see no reason for disturbing the judgment of the court below, and am of opinion that it should be affirmed.

All the other judges concurring, Judgment affirmed:


author: Wright, J. Johnson, J.

text:
    Asa B. Meech, and others v. The City of Buffalo.
    A municipal corporation, having power to make a public improvement, and incidentally the power to contract for doing the work, may voluntarily increase the contract price, where the circumstances will equitably justify it,.'unless prohibited by its charter from doing so.
    Although a municipal corporation has once ordered an assessment to.be made, upon the owners of property benefited, for the purpose of paying the expense of constructing a sewer, if from any cause the amount first fixed and assessed proves insufficient to defray the actual expense of the improvement, it not only, has the poWer, but it is its duty, to order a further assessment.
    It is provided by the charter of the city of Buffalo that in case any assessment shall prove insufficient to defray the expenses of the improvement for which it was made, the common council may direct a further assessment for the amount of the deficiency; and that" the common council shall determine the amount to be assessed for such improvement. In pursuance of this authority, the common council determined the amount to be assessed-for the building of a sewer, and a contract was made with R. to do the work for that amount. This afterwards proving to be insufficient, the common council, for the purpose of supplying the deficiency, and insuring the completion of the war¿, directed the making of an additional . assessment.

      Held, that the supplementary assessment was authorized by the charter of the city, it being a “further assessment,” within the meaning of the charter.

      Appeal from an order of the Superior Court of Buffalo granting a new trial with a stipulation for a final judgment..

    The action was to restrain the defendants from collecting, out of the real estate of the plaintiffs, a second assessment made for the construction of a sewer in one of the streets of the city. The cause was tried at a special term of the court, when the judge found the following facts: That on or about 30th March, 1857, an application was made to the common council of the city for the construction of a sewer in Mariner street, in said city, and that such application was made by a majority of the property holders directly interested therein. The common council, on such application, determined to construct said sewer, and determined the amount to be assessed for the expense of the same at $1,058.63, and in due form of law directed the assessors of the city to assess said sum upon the real estate benefited by such improvement in proportion to the benefits resulting thereto; and said amount was so assessed, , and that the plaintiffs are severally owners of real estate benefited by said improvement, and their real estate was assessed as aforesaid to pay for said improvement.
    That, on the 10th August, 1857, the defendant contracted with one Robert J. Randolph, for the construction and completion of said sewer in a good and workmanlike manner, said sewer to be completed before 1st September, 1857; and agreed to pay said Randolph said sum of $1,058.63 therefor; and Randolph gave the defendant ample security for the performance, on his part, of said contract. Under this agreement, Randolph commenced the construction of the sewer; and while he was at work at it, and before its completion, he struck a body of quicksand below the Surface of the earth, directly in the line of said sewer, and of great extent; the existence of which quicksand was theretofore unknown to the said Randolph, and also to the defendant, and could not have been anticipated by either of them; that the existence of said quicksand increased the expense of the construction of .said sewer to such an extent that it was impossible for said Randolph to construct and complete the same for the contract price, or fór twice the amount of said contract price, whereupon Randolph stopped work on said sewer, and together with a number of the plaintiffs petitioned the common council of said city to increase the contract price for building said sewer, to indemnify said Randolph from the loss which he would sustain by reason of the existence of the quicksand, if he should go on - and complete the sewer for the contract price. Upon said petition the common council determined' to pay and allow to said Randolph the additional sum of $588.13 on Ms contract for the construction and completion of said sewer, for the reason that the expense of constructing the same was greatly increased over the estimated cost and contract price thereof by reason of the existence of said quicksand, which said additional sum was no more than a reasonable compensation over and above the contract price for the building of said sewer; and, together with said contract price, was, in fact, insufficient to pay the actual expense which Randolph was put to in the building and completion of said sfewer; that Randolph would have abandoned the work, and would not have completed the same, unless said additional allowance had been made to him to indemnify him against the loss which he would have sustained by reason of such quicksand; all of which was well known to said petitioners and the common council. That to raise the said additional sum of $588.13, the common council directed the assessors of said city to assess the same upon the real estate in said city deemed benefited by the construction of said sewer, to pay therefor, and thereupon the said'assessors did assess said additional sum of $588.13 upon said real estate, and in and by said assessmfent the real estate of the plaintiffs was assessed to pay said additional sum in the manner and to the amount in their complaint alleged; which said last-named assessment was duly confirmed by the common council on the 8th December, 1857.
    Upon these facts the conclusions of law of the judge at special term were, that the said last-mentioned assessment ivas illegal, and that the plaintiffs, and each of them, were_ aggrieved thereby, and that the defendant be restrained from any further action on said assessment, and from collecting the same or any part thereof; and he directed judgment to be entered accordingly for the plaintiffs, with their costs.
    Judgment being entered in conformity to tMs decision, the defendant appealed to the general term of the supreme court, where the same was reversed and a new trial ordered, with costs to abide the event.
    The plaintiffs then appealed to this court from the order granting a new trial; and stipulated and consented, that if the order be affirmed, judgment absolute should be entered against them.

      W. H. Cutler, for the appellant.
    I. No power can be taken by implication; it must be-conferred by statute. Corporations have only such powers as are expressly granted, or such as are necessary to carry into effect the powers expressly conferred. (Hodges v. City of Buffalo, 2 Denio R. 110, and authorities there cited; Brewster v. Syracuse, 19 N. Y. R. p. 116.) Under section nineteen, title eight of the charter of the city of Buffalo, power is given the common council to determine the expense of the improvements therein referred to (one. of which is the construction of sewers), and to direct the amount so fixed to be assessed by the assessors, &c. And by section thirty-two of said title, it is further provided that in case any assessment shall prove insufficient the council may direct a further assessment for the amount of the deficiency. No other power is conferred by the charter.
    II. The common council having determined the expense "of the sewer, directed the assessment thereof, contracted with Eandolph to construct it for the amount so assessedj and taken ample security for the fulfillment of the contract, had no power to order or direct a further assessment, except upon the happening of the contingency provided for by section thirty-two before cited. This contingency could not happen so long as the contract with Eandolph remained in force. He had not only agreed to construct the sewer for the amount of the first assessment, at all events, but had given security for the performance of his undertaking. Now until this agreement should be cancelled Tby the contracting parties, or abandoned by Randolph, and the remedy against him and his sureties exhausted and found to be insufficient to indemnify the city, the common council had no legal power to direct a further assessment.
    III. The additional amount assessed, $588.18, was a mere gratuity, which is not in the power of the common council to- grant. However hard the bargain of Randolph might have been, that fact of itself formed no excuse for taxing the plaintiffs for his relief. If the principle urged by the respondent’s counsel were to prevail, there would be no limit to the.giving by the common council any amount at any time, when a contractor fancied or represented that his job might prove unprofitable, thus compelling the persons supposed to be benefited by the improvement to contribute the gratuity under the name of “ additional allowance.” The contract with Randolph was neither abandoned or modified. The additional compensation was a gratuity, and the assessment to raise the amount illegal.
    IV. A corporation possesses no natural powers; hence-we are not to look for prohibitions in the law by which it is created and regulated, or, in other words, to take for granted that which is not denied. On the contrary, it is the creature of the statute; its powers are all specified and limited. The insufficiency which, under section thirty-two, title eight, authorizes the common council-to direct a further assessment, means a legal' insufficiency; that did not happen. If the defendant felt ‘■'■honorably and morally bound” to pay Randolph an additional sum because he had taken upon himself a hard bargain, it could only have been authorized to do so, as was done in the case of Brewster v. Syracuse, by a special act of the legislature. We submit, therefore, that the assessment complained of was illegal and void, and that the order appealed from should be reversed and the judgment of the special term affirmed. Section eight, chapter three hundred and seventy-two, of Laws of 1858, provides that “ whenever it shall be made to appear that the proceedings upon any local assessment have been illegal, any party aggrieved thereby may in any stage of such proceedings apply to any court of competent jurisdiction to restrain further action thereon, and the collection of any assessment growing out of such proceedings,, and it shall be the duty of such court to restrain such action and collection in such case.”

      H. S. Cutting, for the respondent.
    I. If the defendant, as a corporation, had power to make the contract in question that po wer was properly exercised by its common council. That body is invested with the management and control of the finances of the city-. (Sess. Laws 1853, sec. 9.) In it is vested the power to construct sewers, to contract for the work necessary and proper in such construction, and to direct an assessment upon the property deemed benefited, to defray the expenses of such construction. (Sess. Laws- 1856, p. 143, sec. 19; Law§ 1854, p. 146, sec. 33.) The common council, while acting within the scope of its authority, is the city, and all its acts are the acts of the defendant. (Conrad v. The Trustees of Ithaca, 16 N. Y. R. 168; Storrs v. The City of Utica, 17 N. Y. R. 104; Warren v. The City of Buffalo—decided in this court in 1861, not reported.) In the last-named case it was contended that the common council) acting as commissioners of highways under the charter (Laws 1853, p. 497), were independent public officers, for whose omissions óf duty the- defendant, as a corporation, was not chargeable. But this court refused to recognize any such distinction, and Chief Justice Comstock, delivering the opinion of the court, said: “ That the acts of a common council, when authorized by the charter, and their omissions of duty, are to be deemed the acts and omissions of the corporation, is now too well settled to admit of question.” •

      II. The contract with Randolph for additional compensation was founded upon a sufficient consideration. (Lattimore v. Harsen, 14 Johns. 330; Monroe v. Perkins, 9 Pick. 305; Hart v. Lauman, 29 Barb. 410.) The original agreement was made in good faith, and the sum-fixed for the payment of the work was upon the assumption that no unusual obstructions would be met with. While excavating for the sewer, the contractor struck a body of quicksand, the existence.of which was unknown to both parties, which changed the whole character of the work, and rendered it impossible to complete it for the sum or twice the sum originally agreed upon. The contractor thereupon stopped the work, joined with some of the plaintiffs in petitioning the council, and upon such petition and in consideration of the unexpected obstruction presented by the quicksand, and the greatly increased expenditure rendered necessary thereby, the council agreed to pay an additional compensation, which, with the sum originally named, was no more than a reasonable compensation for the construction of the sewer. It is expressly stated in the case, that Randolph would have abandoned the wnrk if the additional allowance had not been made, and that this was known to the defendant at the time of granting the prayer of his petition. ' The mere fact that the work proved to be more difficult than was orignally supposed Avould not have justified Randolph in abandoning his contract, and it is not contended that this would have been a sufficient consideration upon Avhich to base a promise for additional compensation, if the contractor had signified ho intention to abandon the work on that account. But in this case, he having abandoned the work and refused to. go on without additional compensation, compelled the defendant to accept such abandonment or hold him to the strict performance of the agreement. By agreeing to pay the additional compensation, the defendant elected to accept the abandonment, and thereupon the old contract was rescinded, and a new one made in consideration that Randolph would go on and complete the work. That this is the effect of the action had in relation to the construction of the sewer, is believed to be fully-established by the authorities cited under this point. In the case of Lattimore v. Harsen, decided by the supreme court in 1817, the plaintiff had agreed to do certain work for a specified sum, and the agreement, seems to have been in writing. After having entered upon the performance of ,vork, the plaintiff-became dissatisfied with his contract and determined to abandon it. This being brought to'the knowledge of the defendant, he promised the plaintiff that if he would go on and complete the work he would pay him at another and increased rate of compensation. In an action brought by the plaintiff, on the new promise, the court held that by the action of the parties the old contract was rescinded, and that the agreement to go on with the work was a sufficient consideration for the promise by paroi to pay a greater sum than that originally agreed upon in writing. The same principle was re-affirmed in the supreme court in 1859, in the case of Hart v. Lawman, and if applied to the case under consideration, is a conclusive, answer to the objection of the plaintiffs in the court below, that the additional compensation agreed to be paid for the-construetian of the sewer was a mere gratuity.
    III. But if the contract to pay additional compensation was incapable of being enforced against the city for want of sufficient consideration, the plaintiffs have no such relation to the contract asfo entitle them to raise the objection. (Brewster v. The City of Syracuse, 19 N. Y. R. 116.) The power to assess for an improvement does not depend upon the existence of a contract upon which the city may be made liable in an action for the expenses of making such improvement. This was virtually so decided by this court in the case of the Town of Guilford v. The Supervisors of Chenango County, (3 Kern. 143.) In that case (p. 149), Mr. Justice Denio said: “The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It 'can thus recognize claims founded in equity and justice in the largest sense of these terms,' or in gratitude or charity.” - So far as the taxing power has been delegated by the legislature, this rule applies to pities as well as to the state,' and in this case affords a sufficient answer to the objection that the defendant had no power to make the assessment in question for the reason that it was for work embraced in a contract which could not have been enforced in an action at law. As the work was -actually performed by the contractor, it was. just and equitable that he should be paid; and as it was for the sole benefit of the plaintiff and others whose property was assessed, it was no less just and equitable that they should furnish the means to pay him.
    IY. The power to construct sewers and to assess the expense thereof upon the real estate benefited thereby is specially conferred upon the defendant by its charter; and as there is no restriction upon the exercise of such power, the defendant, when it has made a contract in relation to the construction of a sewer, may deal with it in the same manner as if it were a natural person. (Ketchum v. The City of Buffalo, 14 N. Y. R. 356, and cases cited therein, and in the opinion of Mr. Justice Hasten.) The power to construct sewers, as in the case of the power to build markets, or make any other public improvement, embraces all the incidental powers usual and necessary for that purpose. Accordingly the defendant, in making the. contract in this case, was not bound to provide for the payment of the work out of any particular fund, but could have bound .itself to pay it generally. (Cumming v. The City of Brooklyn, 11 Paige, 596.) It could have contracted to pay in cash or upon credit, or it need not have contracted at all, but could have purchased its own materials and employed its own labor; and in like manner, it could have contracted with one person for one part of the work and with another person for the other part, and such contracts might be made at different times. All these things, within the principle of the cases above cited, are necessarily incidental to the general power to order and direct the construction of the work, and are not inconsistent with the requirements of the charter that the expenses of the improvement shall be ultimately assessed upon the property benefited. It is contended on the part of the plaintiffs that the defendant, having ordered an assessment for a specific sum and made a contract for the work at the sum assessed, and taken security for the performance of the contract, its power is exhausted, and its only remedy for securing the completion of the work is upon the contract, and that security was taken with special reference to such a remedy. Under such a rule it would be impossible for municipal corporations to conduct their affairs, and.this case furnishes a complete example of the impracticability of its application. Randolph commences the work under the contract and half completes it; he comes to the quicksand and asks the defendant for additional compensation; the defendant refuses it and the work is abandoned. An action is commenced on the contract, against the contractor and his sureties. Three or four years are occupied in obtaining a final decision in the courts. In the meantime the sewer remains half finished; a street is perhaps rendered impassable, the work already done is falling to decay, and the defendant can make no new contract for its completion because the remedy on the first one is not exhausted. It would be worse still if, during the construction of the work, both the contractor and sureties should prove to be insolvent. . In that case the defendant could neither bring an action nor complete the sewer, and yet the property holders might be taxed for an improvement which from being incomplete would be entirely useless. It is submitted that a rule so absurd in its consequences can have n© application to this or any similar case. Under its general power to construct the sewer in question, the ■ defendant did what any prudent man would have done under like circumstances. Its action was not only legal, but just, and was such alone as could have secured the completion of the work. Some of the plaintiffs seem to have been fully aware of this, and having received their full share of benefit from the completion of the sewer, come with an ill grace to ask that they be relieved from the payment of their due proportion of the expense of its construction.
    V., Independently of any provision of the charter authorizing- a deficiency assessment, the defendant had power to make the assessment in question. (Charter—Sess. Laws 1856, p. 143, § 19.) By the section referred to, the defendant is empowered to construct sewers, and direct the expense to be assessed upon the property benefited. A mode is thus pointed out for the payment of such expenses, and if the defendant should voluntarily or by compulsion pay them out of the general fund, any tax-payer might compel the reimbursement of such fund by an assessment on the property benefited. (Cumming v. The City of Brooklyn, 11 Paige, 600.) So that in any event, when a sewer is constructed under the direction of the defendant, the expenses of such construction must be paid for by an assessment on the land benefited. And as all such expenses must be so paid, a power is necessarily implied to assess for all such expenses. It therefore follows that if the defendant had power to incur, the expense embraced in the additional compensation to Randolph, and to bind itself by contract for its payment, it also had power to direct an assessment on the property benefited for the payment of such expense. If this were not so, it would present the singular anomaly of a power given to a corporation to contract for the payment of money in a particular manner, and withholding the means necessary to carry such contract into effect. The question of power is the only one presented in connection with the assessment, as the proceedings for mating it are admitted to have been regular.
    VI. The assessment in question was specially authorized by the defendant’s charter. (Title 8, § 32, Laws 1853, p. 503.) The section here referred to provides that in case any assessment shall prove insufficient to defray the expenses of the improvement for which it was made, the common council may direct a further assessment for the amount "of the deficiency. And section nineteen of the same title provides that the common council shall deter-, mine the amount to be assessed for such improvement. In pursuance of this authority, the council did determine the amount to be assessed, and the work was contracted to be done for that amount. This afterwards proved to be insufficient, and the common council, for the purpose of supplying the deficiency and insuring the completion of the work, directed the mating of the assessment in question. It is submitted that this action of the council comes within both the letter and spirit of the statute conferring the authority. That there was a “deficiency” to be provided for is clear enough, and it is almost equally clear that section thirty-two was designed to provide for such cases as this. In mating improvements amounting to more than two hundred dollars, it is the practice to invite proposals for the work before ordering the assessment; and when a proposal is made and accepted, the assessment is confirmed and the contract executed in accordance with the proposal. In ordinary cases, when a contract is made there can be no deficiency, and the statute does not provide for cases where, as in the one under consideration, a contract is made and abandoned, or where, from other causes, unforeseen by the parties, the expenses are necessarily increased beyond the original estimate. The assessment in question was, therefore, a “further assessment” within the meaning of section thirty-two of title eight of the defendant’s charter.
   Wright, J.

The question of power is the only one presented in connection with the assessment, as the proceedings for making it are admitted to have been regular. It was an assessment for expenses incurred in constructing a sewer in one of the streets of the city. The city charter provides that the common council may cause sewers to be constructed, and the expense thereof to be assessed upon the real estate benefited by such improvement in proportion to the benefits resulting thereto. Power is given to determine the amount to be assessed for the improvement, and to direct the city assessors to assess the amount so fixed. (Laws of 1854, p. 143, § 19, of title 8 of charter as amended.) And it is further provided in the charter, that in case any assessment shall prove insufficient to defray the expenses of the improvement for which it was made, the common council may direct a further assessment for the. amount of the deficiency, (Laws of 1853, p. 503, title 8, § 32.) In this case ■ the corporation ' ordered the construction of a sewer, and simultaneously determined that the amount to be assessed for the expense of the same be the sum of §1,058.63, and directed the city assessors to assess the sum upon the real estate benefited by such improvement; and the amount was so assessed. Afterwards the corporation contracted with one Eandolph to construct the sewer for the sum of §1,058.63,- and Eandolph gave security for the performance of the contract on his part. Whilst prosecuting the work,. and before its completion, he struck a body of quicksand below the surface of the earth, of great extent, and directly in the line of the sewer—the existence of which was theretofore unknown to' both the contracting parties, and could not have been anticipated by either of them. The existence of the quicksand increased the expense of the construction of the sewer to such an extent that it was impossible for Eandolph to construct and complete the same for twice the amount of the contract price; where- '■ upon he stopped working on it, and, in conjunction with several of the plaintiffs, petitioned the common council to increase the contract price for building the sewer, to indemnify him for the loss which he would sustain by reason of the existence of such quicksand, if he should go on and complete the sewer for the contract price: Upon such petition the common council determined to pay and allow to Randolph the additional su of-$588.13 on his contract, for the reason that the. expense of constructing the sewer was,greatly increased over the estimated cost and contract price thereof, in consequence of the existence of the quicksand; which additional sum was no more than a reasonable compensation over and above the contract price; and, in fact, insufficient to pay the actual expenses which Randolph was put to in the building and completion of the sewer. Randolph would have abandoned the work in its incomplete and Unfinished state unless the additional allowance had been made to him as an indemnity for the loss which he would have sustained by reason of the quicksand, and this intention was known to the common council. To raise this sum of $588.13, the common council directed the city assessors to assess the same upon "the real estate deemed benefited by the construction of the sewer, to pay therefor; and such assessment was made accordingly. It is this latter act which the plaintiffs, owners of real estate in the city benefited by the improvement, insist is illegal and void.

The ground assumed by the plaintiff is, that the common council, having determined the expense of the sewer, directed the assessment thereof; contracted with Randolph to construct it for the amount so assessed, and taken ample security for the fulfillment of the contract, had no power to order or direct a further assessment, except upon the contingency happening, as provided for in the charter, of the assessment made proving insufficient, which contingency could not happen so long as the contract with Randolph remained in force, he not only having agreed to construct the sewer for the amount of the first assessment, at all events, but had given security for the performance of his undertaking. That until this agreement should be cancelled by the contracting parties, or abandoned by Randolph, and the remedy against him and his sureties exhausted, and found to be insufficient to indemnify the city, the common council had no legal power to direct a further assessment.

I am not prepared to concur in this view of the corporate power. The power to construct sewers, and assess the expense thereof upon the real estate benefited thereby, is expressly conferred upon the defendant by its charter; and there is no restriction upon the exercise of such power. The power to make the public improvement embraces all the incidental powers usual and necessary for that purpose; and in making the contract in this case, the corporation was not bound to provide for the payment of the work out of any particular fund, but could have bound itself to pay it generally. (Cummings v. The City of Brooklyn, 11 Paige, 600.) It could have contracted to pay in cash or upon credit, or it need not have contracted at all, but could have purchased its own materials and employed its own labor; and in like manner it could have contracted with different persons for the performance of different parts of the work; and such contracts might be made at different times. Having made a contract for the construction of the sewer, in this case, it could afterwards have cancelled or modified it by increasing the contract price. In short, it could deal with it in the same manner as if it were a natural person. In the case of Brewster v. The City of Syracuse, (19 N. Y. Rep. 116), the city was prohibited by its charter from paying any compensation above the contract price, and accordingly the contractors, in that case, for the construction of a sewer, obtained a special act authorizing the common council to assess and collect, in the same mm. ner as the expenses of constructing the sewer were by law authorized to be assessed and collected, the sum of $600, and to pay it over to the contractors in addition to the contract price. The defendant’s charter contains no such prohibition. In the case referred to the contractors had completed the work, and had been paid the full price stipulated in the contract. Here the contractor, when he struck the quicksand, was about abandoning the work, in an unfinished state. He applied to the defendant for additional compensation, which was acceded to the amount of §588.13. It is not pretended that the defendant might not have released Eandolph altogether from his contract, notwithstanding he had given security for its performance, or rescinded it, and entered into a new engagement to secure the completion of the work. So, also, the city could agree to pay an additional compensation in consideration that he would go on and complete the sewer. And this was the effect of its action, and, in my judgment, such action was not only legal but eminently just. Eandolph was performing his contract in good faith, when he encountered a-body of quicksand, of great extent, directly in the line of the sewer, the existence of which was unknown both to himself and the defendant at the time of contracting, and which rendered it impossible for the former to construct the sewer for twice the sum provided for in the contract. This latter sum was the same as the original estimate of the expense of construction made by the common council, but neither in the estimate or contract, was something unknown and not anticipated, which was largely to increase the cost, taken into account. It is true the corporation might have refused additional compensation, arrested the work in its unfinished state, brought an action on the contract, and, if Eandolph and his sureties were solvent, per-, haps ultimately recovered from them a sum by way of damages equal to the cost of constructing the sewer. But was the corporation bound to do this? I think not. It is conceded that the parties might have cancelled the agreement, and, if they could do this, they could certainly modify it. I know of no rule' of law that would hinder a municipal corporation, having power to make a public improvement, and incidentally the power to contract for doing the work, from increasing the contract price, under circumstances equitably justifying it, unless prohibited from doing so in its charter. Under the circumstances of the case the defendant, in increasing the contractor’s compensation, did what any prudent man would have done; and corporations are not required to deal differently with their contracts. I think there was a sufficient consideration to support the promise to pay the additional compensation; but suppose this were otherwise, and hence the contract incapable of being enforced against the city, the plaintiffs have no such relation to it as to entitle them to raise the objection.

We have, then, the case of a municipal corporation empowered to make a public improvement, the expense of which is to be borne, not by the whole city, but by the real estate owners benefited by it. The corporation is to do the work, and the expense thereof to be ultimately assessed upon the property benefited. The corporation, by its appropriate officers, could either do the work itself, or contract for doing it. In .case of a contract, where the work is performed, the contractor can look alone .to the city for payment; and if the corporation should, voluntarily or by compulsion, pay the. expenses of the improvement out of the general fund, any taxpayer might compel the reimbursement of such fund by an assessment on .the property benefited. (Cumming v. The City of Brooklyn, 11 Paige, 600.) In this case the corporation is empowered to determine the amount of the expenses, and direct an assessment to be made for such amount, whatever it may be. This determination may be made, and direction given before or after the work is completed. There is nothing in the charter requiring the defendant to order the assess'.tnent before the improvement is made. Indeed, where the cost of the improvement exceeds $200, the sum requisite for the expenses can only be estimated, and such estimate can only approximate to the actual expense of the improvement. It is the expense of the improvement that the defendant is to cause to be assessed on the real estate benefited by it. Should the corporation order an assessment upon an estimate made before the completion of the work, and it turned out, from any cause, to be insufficient to meet the actual cost, there can be no doubt of its power to order a further assessment. If this were otherwise, the city might be saddled with a portion of the expense of the improvement, which the law has imposed exclusively on the locality benefited by it. There is, consequently, nothing in the suggestion, in this case, that the defendant having once determined the amount to be assessed for the sewer, could not change it, or order a further assessment except under the section of the charter providing for the happening of a deficiency, and that then the deficiency must be so occasioned that there is no other adequate remedy but by a further assessment. The duty being imposed on the defendant to make the improvement and cause the expense thereof to be assessed on the land benefited, if one assessment be directed and it is insufficient to meet' the actual expense of such improvement, a further assessment may be made. As the expenses must be paid by the property owners of the locality benefited,. the power is necessarily implied to assess for all such expenses.

I am of the opinion, therefore, that although the defendant in this case once ordered an assessment to pay the expense of constructing the sewer, if from any cause the first amount fixed and assessed proved insufficient to defray the actual expense of the improvement, it had not only the power, but it was its duty to order a further assessment. But it is not even necessary to go as far this, as I think the assessment in question was specially authorized by the defendant’s charter. It is provided in §32, title 8 of the charter, that in case any assessment shall prove insufficient to defray the expenses of the improvement for which it was made, the .common council may direct a further assessment for the amount of the deficiency. The 19th section of the same title provides that the common council shall determine the amount to be assessed for 'such improvement, and direct the city assessors to assess the amount so fixed. In pursuance of this authority, in the present case the common council did determine the amount to be assessed, and the work was contracted to be done for that amount. This afterwards proved to be insufficient, and the common council, for the purpose of supplying the deficiency and insuring the completion of the work, directed the making of the assessment in question. The power is general to order a further assessment in any case, where the amount first fixed and assessed shall prove insufficient to defray the expenses of the improvement. The aim of the provision is, that the burden of the improvement shall fall wholly upon the locality benefited, and no part on the city generally. ' If the corporation itself should do the work, and it turned out that an assessment made to defray the expense was insufficient, the case would clearly fall within the power expressly conferred. So, if the corporation before entering on the work should estimate the expense thereof, and direct the amount estimated to be assessed, contract for the execution of the work at the amount so directed to be assessed, and the contract made should be subsequently abandoned (as it is conceded it might be), or when, from other causes unforeseen by the parties, the expenses of construction are necessarily increased beyond the original estimate and assessment, there is a “ deficiency” within the meaning of the section, to be provided for by a further assessment. Here an assessment had been made in conformity to a particular estimate, and the work contracted for at the amount of the estimate. A cause unforeseen by the parties is about .o lead to an abandonment of the work in its half-finished state, when the corporation agree, with the view of insuring its completion, to increase the contract price, and the work is accordingly completed. The original assessment to defray the expenses of the improvement has certainly proved insufficient. There is a deficiency in the amount of such assessment. I think the statute was designed to provide for such a case as this; and that the assessment in question was “ a further assessment” within the meaning of § 32, of title 8, of the defendant’s charter.

The order of the supreme court should be affirmed, and judgment absolute rendered against the plaintiffs.

Johnson, J.

The only question presented in the case is, m regard to the power of the defendant, through its common council, to order the second assessment for the completion of the sewer. It is claimed, on the part of the plaintiffs, that the common council having once determined the expense of the sewer and made an assessment to meet such expense—and also seemed the construction and completion of the work by contract, with security for its performance, for the sum thus assessed—had spent all their power, and could not, while the contract was still in force, make an additional allowance and a further assessment for the completion of the same work by the same contractor. By the charter of the city of Buffalo (Sess. Laws of 1856, p. 143, § 19), it is provided that “ the common council may cause sewers to be constructed and repaired; that they shall determine the amount to be assessed for such improvement, and direct the city assessors to assess the amount so fixed.” By section 20, it is provided that the amount shall be assessed upon the parcels of land to be benefited by the improvement; and by section 32 it is provided, that in case the assessment shall prove insufficient to defray the expense of the improvement, the common council may direct a further assessment for the amount of the deficiency. Here the power is given by the express terms of the charter, to make a further assessment in case the first should prove insufficient to defray the expense of the improvement. The fact is established by the finding and decision of the judge, that the first assessment was insufficient to defray the expense óf the improvement,' and that both assessments together were insufficient to defray the actual cost of the work. It is contended,, however, by the appellants, that the expense must be construed to mean the contract price, _ and nothing else; and that, inasmuch as the completion of the entire work was secured by contract, for the amount of the first assessment, there could be no insufficiency. But the first contract was not the one under which the work was done. It was commenced under the first contract, but was continued and completed under a new contract, which provided for the payment of an amount equal to both assessments. According to the contract, therefore, under which the work was earned on to completion, the first assessment was clearly insufficient to defray the expense, even if the contract price is to control entirely in the matter of expense. That the, last contract between the defendant and Randolph was, under the circumstances, not only eminently just and. equitable, but valid and binding in law, admits of no doubt whatever. An unexpected obstacle had been discovered, greatly 'increasing the expense of the work, which was not within the knowledge or contemplation of either party when the contract was entered into. The contractor, finding that the contract price must prove wholly inadequate on account of this hidden and wholly unforeseen obstacle, quitted the work and declined to proceed further without additional' compensation. It was under these circumstances that the new agreement, providing for the additional compensation, was made; and the law will uphold it. (Munroe v. Perkins, 9 Pick. 298; Lattimore v. Harsen, 14 Johns. 330; Hart v. Lauman, 29 Barb. 410.) The new contract operated as a waiver of the obligations imposed upon the contractor by the first contract. When he refused to proceed under the first contract, it was optional with the defendant either to prosecute him for non-performance or waive that right and make a new agreement on a more just and equitable basis. The defendant wisely, as I think, chose the latter. It is not true, as the plaintiffs' counsel insists, that the defendant was bound to pursue the contractor for a breach, and exhaust the legal remedy in that direction before a new assessment could be made. The court will not put a construction so unreasonable upon the power granted in the charter as to compel the defendant to do injustice to its employees and act oppressively. The additional compensation agreed upon was in no sense a gratuity, but strictly a compensation, and as such it was inadequate, as the judge expressly finds. That the defendant, through the common council, had power to abrogate, waive or modify the contract after it was entered into, or make an entirely new one, for the purpose of securing the completion of the improvement, can scarcely admit of a question. The defendant being a party competent to enter into1 a contract for such a purpose, has necessarily full power over the contract to cancel, alter or waive its provisions, as circumstances may require, to effect the end in view, unless its powers are limited and restricted in those particulars. There is no pretense that they are thus limited and restricted by any terms in the charter. The power to cause such improvements to be made, and to order the necessary assessments to defray the expense of making them, is full and ample, and it has been exercised for that purpose and no other in the present case. The second assessment was,- therefore, equally valid with the first, and the judgment of the general term, reversing the judgment, should be affirmed,

Mtjllin, J., also read an opinion in favor of affirmance. All the other judges concurring, Judgment affirmed.