author: Duer, J.

text:
    Herman Vasseur v. John Livingston.
    The clause in § 399 of the Code, "which requires ten days’ notice • of the intended examination of an assignor to he given, is not applicable "when the defendant was himself a party to the contract upon which the action is founded.
    It is no objection to the examination of an assignor, that he made the assignment for the purpose of becoming a witness in the action.
    Quere, whether when an assignment is valid on its face and passes the title, an inquiry into the motives of the parties in making it, with a view to exclude the testimony of the assignor, ought to be allowed ?
    Where a contract for work and labor provides that the work shall be completed within a certain time, parol evidence to show that the time was extended by the party for whom the work was to be performed is admissible.
    A counter claim is a cause of action existing against the plaintiff on the record, and for which a separate action in law or in equity could be maintained against him.
    Hence it cannot be set up in an action by an assignee when it shows a cause of action against the assignor only.
    Judgment for plaintiff affirmed, with costs.

    (Before Oakley, Ch. J., Duer and Slosson, J.J.)
    Feb. 9;
    Feb. 24, 1855.
    Appeal by the defendant from a judgment for the plaintiff, for $316.28, including costs. The complaint alleged that the defendant had employed one A. H. Ritchie, to make for him four engravings at the price of $50 for each plate; that Ritchie had accordingly engraved and completed the plates, but that the defendant had refused to receive and pay for them. It also averred that Ritchie’s claim had been duly assigned to the plaintiff, and demanded judgment for $200, with interest from the 20th of May, 1853, the day on which the plates, it was alleged, were completed.
    The answer denied the employment of Ritchie upon the terms stated in the complaint, and for a further answer alleged that Ritchie on the 2d of April, 1853, received from the defendant four daguerreotypes, under an agreement in writing that he would engrave four plates or portraits from such daguerreotypes, at the price of $50 each, and would finish and deliver the same within six weeks from the said 2d day of April. That Ritchie Rad failed to perform this agreement, and.that by reason of his neglect and delay, the engravings became and were of no value to the defendant.
    The defendant for a further answer said that at the time such agreement was made, he was, and still is engaged in the publication at regular intervals, of an illustrated biographical work, for the use of which the said engravings were intended, and the agreement with Ritchie was made with this knowledge on the part of Ritchie, and with reference to such intended use of said engravings by the defendant in such illustrated biographical work, for the then ensuing monthly issue; that by reason of the neglect and omission of Ritchie above stated, the defendant was prevented from using said engravings in the number, or issue, for which the same were intended, and lost great gains and profits that would and ought to have accrued to him from such intended publication, and both by reason of this neglect and breach of contract of the said A. H. Ritchie, sustained damages to the amount of two hundred dollars, which he offered to recoupe and offset against any damages to be established by the plaintiff.
    The answer then denied that Ritchie’s demand had been assigned to the plaintiff, and demanded judgment against the plaintiff, $200 damages, besides costs of the suit.
    The eause was tried upon these issues before Oakley, Ch. J., and a jury, on the 9th of January, 1855.
    Before the introduction of any evidence on the part of the plaintiff, the defendant moved to dismiss the complaint, on the ground that the answer contained material allegations of new matter constituting a counter claim, which not having been controverted by a reply, must, for the purposes of the action, be taken as true, and that the defendant was therefore upon the pleadings, entitled to judgment.
    The motion was denied by the court, and the defendant excepted.
    A. R. Ritchie, the assignor,
    was then called as a witness on the part of the plaintiff, and produced and proved an assignment in writing to the plaintiff, for the consideration of $1, of his demand against the defendant, upon which the action was brought. He testified that he had received no other consideration for the assignment than the plaintiff’s note for $175, which he had deposited in trust for collection, and which, was paid at maturity; that he had not furnished the plaintiff with money to take up the note, but believed he knew where the money came from. That about the time the note matured, a Mr, Johnston, the plaintiff’s brother-in-law, borrowed money of him, which he had no doubt went to take up the note, and was furnished to the plaintiff for that purpose ; and that he had taken from Johnston a note not yet due, for the money so borrowed.
    The counsel for the plaintiff then proposed to examine Ritchie, to prove the demand stated in the complaint. The defendant objected to his examination. The objection was overruled, and the defendant excepted.
    Ritchie then testified that in the spring of 1853, he had received from the defendant four daguerreotypes, from which he undertook to engrave four likenesses, for a biographical work the defendant was then publishing. That he gave to the defendant a receipt containing the terms of his agreement, which was produced and shown to the witness by the defendant, and is in the words and figures following:
    “1. J. G\ Chapman, Maryland,
    “2. D. A. Davis, N. C.,
    “ 3. S. S'. Haldeman, Penn.,
    “4. O. C. Pratt, Oregon.
    “Received of John Livingston, daguerreotypes of the above persons, to be engraved, at $50 each; to be finished and delivered within six weeks from this date.
    “April 2d, 1853.
    “ A. H. Ritchie.”
    That he, the witness, had completed the engravings, but that the plates were not ready for delivery within the time limited. The witness then proceeded to testify to certain facts tending to show that the time for the completion of the plates had been extended by the defendant; that he had not furnished the witness in time with the necessary lettering; and, that after the six weeks had expired, the witness had furnished him with proofs from the plates, which he had not only received without objection, but Rad directed certain alterations to be made therein, to render the likenesses more perfect.
    The defendant objected to this evidence, on the ground that no evidence was admissible to vary or modify the written agreement set forth in the answer. The objection was overruled, and the defendant excepted.
    The testimony on the part of the plaintiff being closed, the defendant was sworn and examined as a witness on Ms own behalf, to prove that there had been no extension of the time limited for the performance of RitcMe’s agreement.
    The OMef Justice, in charging the-Jury, submitted to them two questions of fact. Eirst, whether the time for the completion of the plates had been extended, or all objections to the delay been waived by the defendant; and second, whether the assignment by RitcMe was made in good faith, so as to divest Mm of all interest in the cause, or whether it was a mere pretence, he still remaining the actual owner of the demand; and he instructed the jury, that if upon either of these questions their opinion should be in favor of the defendant, he would be entitled to their verdict.
    There were no exceptions to the charge. The jury retired, and on their return rendered a verdict for the plaintiff for $210.20.
    The defendant, in person, now moved for a reversal of the judgment, and insisted that as there was no reply to the allegations of new matter contained in the answer, those allegations ought to have been taken as true, and the complaint, therefore, to have been dismissed. That section 112 of the Code, provides that the action by an assignee shall be without prejudice to any set-off or other defence existing at the time of the assignment, and that it could not be doubted that the facts, which from the want of a reply were admitted to be true, constituted a good defence. That by section 168 of the Code, every allegation of a counter claim not controverted by a reply, must be taken to be true, and that the claim set up in the answer was manifestly a counter claim within the definition of the Code. The defendant further contended that RitcMe ought not to have been examined as a witness, no notice of his intended examination having been given, as required by section 399 of the Code, and cited Knickerbocker v. Aldrich, 7 How. P. R. 1; Falcon v. Keen, 8 id. 341. The defendant further argued, that the evidence tending to vary the agreement set forth in the answer, by showing that the time for its performance had been extended, ought to have been excluded; and that upon the facts proved, the court ought to have held that the assignment to the plaintiff of Ritchie’s claim was merely colorable, and, therefore, void.

      Q-. A. Bowman, for the plaintiff,
    insisted that—
    I. No reply to the defendant’s answer was necessary.
    First. — The plaintiff is assignee of the demand upon.which the action was brought. If there was a breach of the contract on the part of the assignor, as is set up in the answer, the plaintiff could not recover; but no recoupement or counter claim could be allowed against him for damages sustained by defendant in consequence of such breach; for such damage, if any, defendant has his remedy against the assignor.
    Second. — The breach of the contract, alleged in the answer, is in issue upon the pleadings without a reply, and the allegation of the damage to defendant by the alleged non-performance of plaintiff’s assignor required no reply, the effect of such damage, even if admitted, being contingent upon the decision of an issue already joined. The fact of performance must be decided, and upon that the whole importance of the constructive admission of damage claimed upon the pleadings depends;-thus, the utmost that can in any view of the matter be claimed as the effect of plaintiff’s omission to reply, is simply this — that upon proof of the breach of the contract by plaintiff’s assignor, the amount of damage is admitted, and proof on that point dispensed with; this admission could only be material in the case of an action brought by the original claimant.
    Third.' — Since the amendment of section 168 of the Code, (April 16, 1852,) it is no longer, every allegation of new matter constituting a defence, but “ every allegation of new matter constituting a counter claim” that requires a reply, in order to avoid a constructive admission of its truth. It is clear that the averment of the answer, that the work was to have been completed in six weeks, and was not so completed, does not constitute a counter claim, and that no admission of the truth of that averment can be inferred from the omission to reply to it. If, therefore, tlie additional allegation of damage constitutes a counter claim, and required a reply to repel the inference of its admission, nothing that is material in this action is admitted by the omission to reply.
    H. The objection to Ritchie as a "witness, merely went to his credit, and was for the consideration of the jury. It is disposed of by the verdict.
    IH. The evidence of the extension of the time within which the work was to be done, was properly admitted. It was not within the rule prohibiting parol evidence to vary an agreement in writing.
    IY. The motion for a nonsuit was properly denied. The plaintiff had made out his case.
    Y. The question as to the real ownership of the demand — i. e., whether plaintiff was the actual party in interest, was a question for the jury. As such, it was distinctly submitted to them by the charge of the court. By their verdict they have found upon that point in favor of plaintiff.

       Affirmed in the Court of Appeals, 3 Kernan, 248.

   By the COURT.

Duer, J.

We are of opinion, and clearly so, that all the exceptions taken on the trial were properly overruled, and that the judgment that has been rendered for the plaintiff must be affirmed.

As to the objection that Ritchie was improperly admitted as a witness, we might content ourselves with saying that the objection was not placed upon the trial upon the ground that is now relied on, namely, that notice of the intention to examine him had not been given; for had this ground then been taken, we have no right to say that it would not have been removed by proof of the actual service of notice. But assuming that notice of the intended examination of Ritchie was not in fact given, the conclusive answer to the objection is, that none was necessary, and that the contrary supposition, as we have before and not un-frequently held, is founded upon a mistaken construction of those provisions of the Code which relate to the subject. As we read and understand section 399 of the Code, the clause which requires ten days’ notice of the intended examination of an assignor to be given, is connected with and refers solely to that which immediately precedes it; hence, is not applicable at all when the action is brought by an assignee against a defendant who was himself a party to the contract upon which the action is founded.

The next objection that we shall notice, that upon the facts proved, or admitted by Ritchie, the Judge ought to have held the assignment by the plaintiff to be void, is also and plainly untenable. Ritchie, it is true, frankly confessed that he made the assignment for the purpose of making himself a witness, but this, since the repeal of the provision in section 899, which forbade an assignment for that purpose, or, more properly, rendered the assignor in such a case an incompetent witness, he had a perfect right to do, and to confer this right must have been the intention of the Legislature in repealing the provision. As the Code now stands, the only question is, whether the assignment operated to pass to the assignee the title to the demand in suit, and if this is a question, as appears to have been assumed on the trial, depending upon the good faith of the parties, it was properly submitted to the determination of the jury, and their decision of it in favor of the plaintiff, which their verdict involves, must be regarded by us as conclusive. The Judge would certainly have erred, if, upon the evidence before him, he had himself made an opposite decision. Speaking individually, I strongly incline to the opinion, that the Judge, instead of submitting the question to the jury, ought himself to have determined that the assignment was valid, and the assignor a competent witness. When an assignment has been duly executed and delivered, and, by its terms, vests the legal title in the assignee, it is valid as between the parties, whatever may have been their motives or intentions in making it, and I apprehend, that evidence of an agreement or understanding between them that it should not operate at all, but that the judgment, if recovered, and its fruits, should belong wholly to the assignor, could not be held to divest the title which, by the execution and delivery of the instrument, the assignee acquired. Proof of such an agreement would go very far to impeach the credit of the assignor as a witness; but, as it seems to me, that it would not in judgment of law render him the real party in interest, it would not render him incompetent. And such, in the case of Davison v. Miner, (9 How. Pr. R., 524,) appear to have been the views of a learned Judge, whose opinions I have long been accustomed to think carry with them a far more than ordinary, weight and authority.

Another objection to the plaintiff’s recovery, which was strongly pressed 'by the defendant, is, that evidence tending to show that the time for the completion of the engravings ■ according to Ritchie’s agreement, had been extended, or the objections to his delay in performance waived by the defendants, ought not to have been received, since the effect of the evidence was to modify and vary the written agreement set forth in the answer, and proved upon the trial, contrary to the rule of law which forbids any subsequent alteration of such an agreement except by some other agreement or instrument of equal authority; that is, an agreement or instrument in writing.

This objection, at first view, seems to be plausible, yet, unless we refuse to follow an unbroken series of decisions, we are bound to say that the rule of law on which the defendant relies, although undeniable when properly understood, has no application to the case before us. It is not a case within» its provisions, although it may seem to be embraced within its terms.

Ño rule of evidence, we apprehend, is more clearly and certainly settled, than that in an action upon a written contract for work and labor stipulated to be performed within a definite time, an extension of the time, or an entire waiver of objections to a delay in performance, may be shown by parol evidence of the declarations, or acts in pais, of the party, who at the time was entitled to claim the performance. I have stated that this rule is established by a long series of decisions, but, without citing the English cases, I shall content myself with referring to some in our own Reports; and I add, that it seems to me that the rule, as I have stated it, is, in reality, only a special application of one far more general, namely, that the performance of a condition the breach of which would otherwise create a forfeiture, or bar a recovery, may, in all cases, be dispensed with by the party to whom the performance is due; of which the waiver, by an acceptance of rent in ar-rear, of a right to re-enter for the non-payment of the rent on the day stipulated in the lease, is a striking instance. (Keating v. Price, 1 John. Ca. 22; Fleming v. Gilbert, 3 John. R., 528; Gorte v. Gorte, 10 John. 402; Botsford v. Burr, 2 John, Ch. R., 405; Crane v. Maynard, 12 Wend. 408; Betts y. Perine, 18 Wend. 219; Smith v. Grogerty, 4 Barb. 616.)

looking at the evidence in this case, it would seem, according to the testimony of Ritchie, that not only the defendant dispensed with a performance of the agreement within the time limited, but himself prevented its performance by his failure to furnish in due season the lettering necessary to be engraved on the plates; but as this question seems not to have been submitted to the jury, it cannot be said that their verdict involves its decision, and we have certainly no right to decide it ourselves. The question, however, of an extension of the time limited for the completion of the plates was distinctly submitted to the jury, and upon this, as well as upon that of the good faith of the assignment, their verdict is conclusive.

A single exception, and it is the last, remains to be noticed, and although it is that on which the defendant seemed mainly to rely, it will not be found to require many observations.

There is no reply, it is said, to the allegations in the answer of new matter constituting a counter claim, and these allegations are therefore admitted to be true, and as the counter claim is for a sum equal in amount to that demanded by the complaint, the admission of its truth, it is urged, necessarily operated to extinguish the demand.

The Judge, therefore, erred in refusing, upon this ground to dismiss the complaint.

Now, it is quite true, that when there is no reply to an allegation, which is a counter claim in the proper sense of the term, the justice of the claim is admitted, but it is equally certain that when the allegation is a defence, only, and not a counter claim, a reply is unnecessary, and the burden of proving it rests upon the defendant. Hence the objection so confidently relied on is manifestly groundless, if the allegations of new matter in the answer amount to a defence, and no more than a defence, and the supposition that they constitute a counter claim is founded on an entire misapprehension of the meaning or proper application of the term. And such exactly is the case before us. A counter claim has been very justly defined to be a cause of action existing against the plaintiff on the record, and for which a separate action at law or in equity could be maintained against him. (Gleason v. Moon, 2 Duer, 642.) It follows from tMs definition, that when the action is brought by an assignee, an allegation in the answer of a demand, that from its nature could only be enforced in an action against the assignor, although from the facts set forth it may possibly be good as a defence, as a counter claim is irrelevant and senseless. What, then, is the new matter alleged in the present answer? It is that Ritchie failed to perform his agreement, and that from his non-performance the defendant has sustaned damages to the amount of $200, for which a judgment is demanded. The failure of Ritchie to perform his agreement was a good defence, which as such required no reply, and which the defendant was bound to prove, and which had he proved to the satisfaction of the jury, he would have obtained their verdict. He has had all the benefit of it as a defence to which he was entitled; but the claim for damages as resulting to the defendant from Ritchie’s breach of his agreement, is a demand that from its nature could only be enforced in an action against Ritchie himself, and for which it is certain that the plaintiff on the record could never be made liable. In brief, a counter claim is a substitute for an action, or, more properly, is itself an action commenced by arf answer instead of a summons; and, hence, unless as an action it is maintainable against the plaintiff on the record, it is nugatory.

The allegation that under § 112 of the Code the assignee of a demand takes it subject to every defence that existed at the time of the judgment is undeniably true, but is wholly inapplicable. A counter claim, which is not also a set-off, is not'a defence. It is a distinct and independent-cause of action, which is not used simply to repel the claims of the plaintiff, but for which a judgment against him is, in all events, demanded. Previous to the Code it could not be set up by a defendant at all, and the permission to set it up in an answer, although with a change of its name, assuredly has not changed its legal character. A recoupement or a set-off is a defence; but the defendant who avails himself of such a defence admits, in whole or in part, &e demand of the plaintiff as alleged in the complaint. In the case before ns — the counter claim, as it is called, which is alleged in the answer, is a positive denial that the cause of action set forth in the complaint ever existed — and is, therefore, neither a recoupement, nor a set-off. It is true, that had the facts, upon which it exists, been established by the evidence, the recovery of the plaintiff would have been wholly defeated; but it is equally certain that in no event could a verdict or judgment have been rendered against the plaintiff for damages for which, if sustained at all, his assignor Ritchie alone was hable. It follows that there is no counter claim in the answer to which the plaintiff was bound to reply.

The judgment appealed from must be affirmed with costs.

       It is for this reason that the plaintiff in an action in -which a counter claim has been interposed, is not permitted to discontinue -without leave of the court. (Cockle v. Underwood, 3 Duer, 676.)


source: Caselaw Access Project

author: Slosson, J.

license: Public Domain

text:
    William H. Adams v. The Mayor, &c., of the City of New York.
    When a plaintiff seeks to recover for work and labor performed under a written contract, containing special provisions, the performance of which, as conditions precedent, he is bound to prove, the contract or its substance must be stated in the complaint, and a compliance with its conditions be distinctly averred.
    The rule of pleading, which formerly obtained in such eases, has not been altered by the Code, but on the contrary, is enforced by requiring all the facts constituting the eause of action to be set forth in the complaint.
    Where a contract for work and labor requires a certificate of the performance of the work to be given by some officer or other person, to entitle the contractor to a stipulated payment, the giving of the certificate by the persons named, and in the terms prescribed, is a condition precedent to a right of action in the contractor.
    But in the absence of fraud or palpable mistake, such a certificate properly given is conclusive upon the parties, and entitles the contractor to recover without any other proof of the actual performance of the work.
    The contract in this case, required that certificates of the performance of the work specified should be signed by the superintendent of wharves and an inspector to be appointed and be filed with the street commissioner to entitle the plaintiff to demand the payments stipulated to be made to him. The certificates produced and proved upon the trial, and upon which the plaintiff was allowed to recover were signed only by the superintendent of wharves.

      Held, that the certificates in this form were fatally defective, and that no other proof having been given of the performance or acceptance of the work contracted for, the plaintiff was not entitled to recover.
    Judgment on verdict reversed; new trial granted; costs to abide event.
    (Before Oakuev, Oh. J.; Ddek and Slosson, J.J.)
    February 10; February 24, 1855.

      The action, was brought to recover from the defendants, the corporation of the city, the' sum of $3,941, for work and labor performed by the plaintiff. The complaint alleged that at the request of the defendants, he, the plaintiff, had rebuilt for them the inner portion and L of pier No. 45 on the North River, in the city of New York: that the work Was completed and was accepted by the defendants, and was reasonably worth the sum of $3,941, for which sum, with interest from the 26th of June, 1854, it demanded judgment.
    The answer was a general denial of the allegations in the complaint.
    The cause was tried before Oakley, Ch. J., and. a July, on the 17th of November, 1854. The following were the proceedings on the trial:
    The plaintiff’s counsel called Charles Turner, who being sworn, testified, that he was Deputy Street Commissioner.of the city of New York; that the work referred to in the complaint, was done for the defendants by the plaintiff, under a written contract hereinafter set- forth, executed by and between the plaintiff and -the defendants.
    That the work was under the direction of the Street Commissioner, and the Superintendent of Wharves and Piers. That Robert Earl, the Superintendent of Wharves and Piers of the city, filed the two certificates hereinafter set forth, in the office of the Street Commissioner. That after the expiration of fifteen days, the Street Commissioner drew a requisition on the Comptroller of the city in favor of this plaintiff, for the contract price of the work, but that such requisition was not paid. That the work in question was accepted by the Street Commissioner.
    On being, cross-examined by the counsel for the defendants,, witness testified; that he had no other knowledge of the acceptance of the work by the Street Commissioner, than the filing of the certificates, the drawing of the requisition, and the fact that the lessee of the defendants had continued in possession of the pier.
    The counsel for the plaintiff thereupon read in evidence the contracts and certificates, as follows:

      “ COPY OF CONTRACT FOR REBUILDING THE INNER PART OF PIER NO. 45, FOOT OF CHARLTON STREET, NORTH RIYER.
    “ This agreement, made and concluded this 1st day of April, one thousand eight hundred and fifty-four, by and between the Mayor, Aldermen, and Commonalty of the city of New York, by their Street Commissioner, James Furey, of the first part, and William H. Adams, of the second part, witnesseth:
    “ That the party of the second part hath agreed, and by these presents doth agree, under penalty expressed in a bond bearing even date herewith, and hereunto annexed, to rebuild the inner part of pier No. 45, N. R.”
    Then follow in the contract minute observations and specifications as to the manner of performing the work, and the description of the materials to be used. These are omitted as having no bearing on the questions decided. The remaining provisions are the following:
    “ The whole work and materials to be under the direction of the Superintendent of Wharves, and the Inspector to be appointed; and any work done, or materials furnished, which shall not be satisfactory to them, shall be immediately removed, and other work and materials substituted, until they shall be satisfied. Every thing which shall be necessary for the construction of the above work, to be furnished and performed by the contractor, whether mentioned in this specification or not, without extra charge.
    “ Payment to be made as follows: one third part when the piles are driven, and caps and ranging timbers laid on; one third part upon the completion of the entire work, and the remaining third part at the expiration of fifteen days thereafter; provided said pier is then in good condition, and in every respect according to the specification. The several payments to be made, on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.
    “ The party of the second part hereby farther agrees to receive, as full compensation, for furnishing all the materials and labor for the above work, the sum of three thousand nine hundred and forty-one dollars, and to complete tlie same in sixty days from tlie date of this instrument, under the penalty of twenty dollars per day after the time expires, to be deducted from the amount to be paid to him; and also binds himself to commence the work immediately on signing the contract, and to pay the Inspector for the time he may be employed on the work after the time has expired.

      “ In witness whereofj the parties to these presents have hereunto set their hands and seals, the day and year first above written. .
    “Wm. H. Adams, [l.s.]
    “ Signed and sealed in the presence of
    • “Gr. T. ROGERS.”

      “ This is to certify, that Wm. H. Adams is entitled to his first payment on contract for rebuilding pier at the foot' of Charlton street.
    “ New York, June 6, 1854.
    “Robert Earl,
    “ Supt. Wharves.

    “ June 26th, 1854.
    “ James Furey, Esq.
    “ This is to certify that Wm. H. Adams is entitled to his second payment on contract for rebuilding pier at the foot of Charlton street.
    “Robt. Earl,
    “ Supt. Wharves

    Robert Earl, for plaintiff, being duly sworn, testified that he was Superintendent of Wharves and Piers, and had charge of the work in question, and that the same was done under his direction, and the certificates made and signed by him. That he approved of and accepted the work. That from tie completion of the work, a lessee under the corporation had been in possession of the pier, collecting wharfage.
    On his cross-examination he said: “ I mean by acceptance of the work, that I gave the certificate referred to.”
    Abraham Miller, sworn for plaintiff, testified, that he has been the lessee from the corporation of the pier No. 45 in question, ■under a lease executed before this contract for repairing, and that during the repairs by the plaintiff he paid no rent on this lease; but that he has paid rent on the same to the Corporation since the same was completed by the plaintiff.
    The counsel for the plaintiff rested his case, and the counsel for the defendants moved to dismiss the complaint on the grounds—
    1st. That the complaint and proof did not show a cause of action.
    2d. That the action not being brought on the contract, there was no evidence as to the value of the work performed by the plaintiff.
    The court denied the motion, and the counsel for the defendants excepted.
    The counsel for the defendants then offered to prove:—
    1st. That the plaintiff had utterly failed to perform the work in question according to the terms of the contract, and that the same was but partially done, and that unskilfully.
    The court refused to admit the evidence, on the ground that the certificate of the Superintendent, Earl, concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates, to which decision the counsel for the defendants excepted.
    The counsel for the defendants thereupon rested his case, and the court directed the jury to find a verdict for the plaintiff, subject to the opinion of the court on a case to be made, to be heard at the General Term, ifi the first instance.
    The jury thereupon rendered a verdict for the plaintiff for the sum of $4,053x#ir.
    A. J. Willard, for the plaintiff,
    moved for judgment on the verdict, and in support of his motion argued as follows:
    I. The plaintiff proved upon the trial, that the defendants had agreed to pay him a specific sum for performing the work in the complaint mentioned; that the work was done under the direction of the Street Commissioner, and of the Superintendent -of Wharves, and was approved and accepted by the Superintendent of Wharves, and by the Street Commissioner, and a requisition made in plaintiff’s favor on the Comptroller for the contract price, which, was not paid. If, therefore, these officers acted within the scope of their legal authority, the plaintiff’s case was fully made out.
    II. The Street Commissioner, and the Superintendent of Wharves acting under him, possessed exclusive authority to determine the plan of the work, in all its details, and to alter that' plan from time to time; to enter into contract for the work, and to provide from time to time for necessary alterations in the work, either by suitable provisions in the contract, as originally drawn, or by subsequent arrangement with the contractor; to determine whether the work was properly executed, and to accept the same •, and their acts, within this line of authority, are corporate acts, binding the corporation in the same manner as an individual is bound by his duly constituted agent. - (Charter, 1849, sec. 12.)
    HI. Both of the grounds on which the defendants prayed a nonsuit, are untenable, and the court properly refused to grant' a nonsuit. 1. As to the objection that the proof did not show a cause of action, it was wholly without foundation. 2. As to the objection that the action was not brought upon the contract, and that, therefore, there was no evidence of the value of the work performed, we say, 1st. That the action is brought upon a ’ special contract to pay a specified sum for the work. 2d. But if it was otherwise, the contract furnishes the only measure of value proper to the case.
    IY. The evidence offered by the defendants, and rejected by the court, constituted a single proposition; it was rejected by a single ruling; and the defendants excepted to the ruling as an entirety, and consequently, if inadmissible as to either branch, it was properly excluded as a whole, and the ruling cannot be disturbed.
    Y. The proof offered that the plaintiff had utterly failed to perform the work in question, was properly rejected, for the following reasons: 1. As subversive of the contract rights and obligations between the contracting parties. 1st. It improperly assumed that the written contract in evidence constituted the true and only contract between the parties. 2d. The true contract between the parties includes not only the written contract, but •such variations in its terms as were authorized or directed by the Street Commissioner. 3d. If there was a variance in the con-straction of the work from the original plan,-we are bound to presume, in the absence of - any suggestion to the contrary, that such variance was with the authorization and direction of the Street Commissioner. 4th. The highest evidence of this, is the fact, that the work was approved and accepted by the Street Commissioner and the Superintendent of Wharves, and was done under their direction. 5th. If there was a variance, it was obviously the understanding of the parties that the fixed contract price should still govern. II. — -It is inconsistent with the rights of these officers to determine whether there had or had not been a complete performance. (Charter, 1849, sec. 12.) III. — The clause in the contract, that payment should be made on filing the certificates of the Superintendent of Wharves, is not only a condition precedent, on which alone the contractor should become entitled to payment, but a condition absolute, on which his right became perfect. 1st. Had the certificate been withheld, the contractor could not have obtained his payment, except' he could show fraud in the withholding. 2d. So the certificate having been given, it can only be attacked on the ground of fraud, or possibly of accident and mistake. 3d. Ho objection of this kind being made to -the certificate, it is final. IY. — It is also inadmissible, as the work was accepted by the competent corporate authority. 1st. The proof as offered could only go to destroy the plaintiff’s entire right to compensation, upon the ground that there had been no performance of the contract, it does not assume merely to qualify or reduce his claim in amount. 2d. But the acceptance of the work precludes the defendant from opening such an issue. 3d. The propositions of law stated under the next point will further elucidate this view. (See Burn v. Miller, 4 Taunt. 745.) Y. — The branch of the defendant’s offer of proof under consideration is not broad enough in any aspect of the case to render the evidence admissible, inasmuch as it does not propose to show that the work was less useful or valuable, or even costly, as executed than as contemplated by the written contract. 1st. The defence is in itself purely technical, and does not affect the equitable claim of the plaintiff. 2d. It is not a necessary or presumable consequence of its admission that the plaintiff’s claim would have been reduced or affected in any way.

      YI. The branch of the defendant’s offer of proof relating to a supposed unskilful execution of the work is equally inadmissible. I. — The action being upon a special contract with a stipulated price, evidence of unskilful execution is not admissible; at all events, it cannot be set up, unless pleaded by way of recoupement. 1st. This doctrine was held in Brown v. Davis, cited in a note to Bastin v. Butler, (7 East. 478,)-.approved by Lord Ellenborough, in Bastin v. Butler, who distinguished the latter case from Brown. v. Davis, and followed in Everitt v. Gray, (1 Mass. 101,) and though held not to apply to a claim upon a quantum meruit, seems to be undisturbed. 2d. The evidence, if admissible, under any state of the pleadings, is a distinctive defence by way of recoupement, which should have been pleaded. II. — But even had the contract price been undetermined by the contract, the defence still must, under the Code, be pleaded in order to be available. (Code, § 159.) III. — It is neither broad enough nor specific enough. It does not appear whether it was the unskilfulness of the plaintiff'in executing the work, or of the Street Commissioner in designing it, nor whether such want of skill affected the value of the work. 1st. The plaintiff having established a meritorious claim, every intendment is against the defendant, except so far as precluded by the terms of his offer. 2d. The offer not being broad enough was properly rejected. IV. — Under the contract such evidence cannot be received without first showing that notice was given. to the plaintiff that the work was not satisfactory, and to remove the same; and the failure of the plaintiff to comply with such direction and to make the work good.
    VII. The plaintiff is entitled on the whole case to judgment on his verdict, there being no error in the rulings of the court excluding evidence.

      B. J. Dillon, counsel of the corporation, for the defendants,
    insisted, upon the following grounds, that the plaintiff was not entitled to recover:
    1. The complaint does not aver the contract produced, nor does the proof show its performance. 2. The certificates of the ' Superintendent of Wharves are not evidence of performance. 1st. They are not made so by the contract. 2d. Those for the first two payments are not sufficient, under the contract; they do not state the work done, "which, by the contract, justified payment, but contain merely his opinion that the plaintiff was entitled to payment. 3d. No certificate was made or filed, to justify the third or final payment ,• this payment was not to be made until fifteen days after the completion of the entire work, provided it should then, at the end of that time, be in good condition. 3. If Earl, the superintendent, had testified (as he did not) to the same facts, required to be stated in the certificate to justify the third payment, it would not have been sufficient, (Smith v. Briggs, 3 Denio, 73.)
    n. The plaintiff cannot recover upon the quantum meruit. 1. There was no proof of the value of the work. 2. The plaintiff could not invoke the contract to show the value of the work, unless he also showed that the work was done according to the contract, which he did not show. 3. The acceptance and approval of the work by the Street Commissioner and Superintendent of Wharves, did not reheve the plaintiff from the necessity of showing the work done, and its value. Independent of the contract, those officers had no right or power to bind the defendants; nor, under the, contract, had they any right to waive its performance, especially since the Amended Charter of 1853, requiring contracts to be let to the lowest bidder. 4. The defendants never consented to aji abandonment or waiver of the contract, nor accepted the work. The plaintiff repaired a pier, which the defendants had leased. After the repairs, the lessee used it, and paid rent to the defendants. This amounts neither to waiver or acceptance. (Paige v. Ott, 5 Denio, 406.)
    HE. The evidence offered by the defendants to show that the work was but partially and unskilfully done, was admissible. 1. The plaintiff claimed to recover for his work a quantum meruit, what it was reasonably worth. The evidence offered was therefore pertinent to the issue. (Grant v. Button, 14 J. R. 277; Fatf v. Montague, 14 Mass. 282.) 2. The defendants were not concluded by the certificates of the Superintendent Earl. 1st. Earl had no right to make any certificates, except by virtue of the contract. This is not a suit upon the contract. 2d. The two certificates proved contain no statement of facts, but of opinions, and the third certificate required by the contract, was not proved. 3d. The meaning and spirit of the contract is, that payments should be made upon two conditions; 1st. That the work should be completed according to the specification, and should, continue in good condition for fifteen days thereafter; and 2dly. That certificates of those facts from the Superintendent and Inspector should be furnished. It was competent for the-defendants, at least, to show that one of those conditions had not been complied with.
    • IT. The contract alleged in the complaint was not proved; on the contrary, a'special sealed contract was produced, but no .evidence given to show either its performance or abandonment. This was not allowable prior to the Code, and should now be discouraged. (Sunnydale v. Livingston, 10 J. R. 36s; Ohamplin v. _ Butler, 18 J. R. 169; Richards v. Stanton, 16 Wend. 25;' Dubois v. Del. Co. 4 Wend. 285; 12 id. 334 ; 15 id. 87; Hollinshead v. Machier, 13 Wend. 276; Merrill V. Ithaca Go: 16 Wend. 586; Raymond v. Beavand, 12 J. R. 274; Jennings v. Camp, 13 J. R. 94; Ladue v. Ferguson, 24 Wend. 60; Smith v. Smith, 1 Sand. 206.) '
    Y. The complaint should be dismissed with costs. If a new trial be ordered, it is respectfully submitted, that the court should express their opinion upon the points taken, with a view to the second trial.
   By the COURT.

Slosson, J.

The plaintiff counts on a quantum meruit, for work and labor upon pier Ho. 45, North River.

On the trial, he proved by the Deputy Street Commissioner, that the work "was done under a written contract.

By the contract, it appears that the work was to be done under the direction of the Superintendent of Wharves, and an Inspector to be appointed; and that the payments were tó be made as fob I5ws: one-third when a certain portion of the work was done, one-third when the work.was completed, and the remaining third at the expiration of fifteen .days thereafter — the several payments to be made on the certificates of the Superintendent of" Wharves and Inspector being filed with the Street Commissioner.

The plaintiff then read in evidence two certificates by the Superintendent of Wharves, not signed, however, by any one answering the designation of Inspector, and proved that those two certificates were filed in the office of the Street Commissioner.

He then proved that from the time of the completion of the •work, a lessee of the corporation, under a lease executed before the contract in question, had been in possession of the pier, collecting wharfage; that while the repairs were in progress the lessee paid no rent, but that after they were completed he paid rent to the corporation.

The defendants offered to prove that the plaintiff had failed to perform the work according to the terms of his contract, &c., but the presiding Judge refused to admit the evidence, on the ground that the certificates of the Superintendent concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates, and a verdict was taken, subject to the opinion of the court.

We think the plaintiff should have set out the contract in his complaint, with proper averments of the fulfilment of the conditions on which his right to receive payments depended.

Where a special contract has been rescinded or abandoned by the parties, or put an end to by the wrongful act of the defendants, the plaintiff may resort to the common counts.

So where the work has been completely executed; so, also, where the work has been done pursuant to the contract, except as to time, and the defendant permits it to be done after the time has expired, the common counts are sufficient; and yet, in the two latter cases, the contract" being still a subsisting one, the plaintiff must produce it upon the trial, in order that it may be seen whether the work has been done in pursuance of it, and whether the stipulated time and mode of payment are such as to warrant a recovery without declaring specially on the contract, and for the further purpose of fixing the amount of damages.

But if the contract contain such special provisions as require an allegation of performance, before the plaintiff would be entitled to recover, then the proper mode of declaring is on the contract itself, and not on the general counts. (Livingston v. Livingston, 10 J. R. 36; Smith v. Smith, 1 Sand. S. C. R. 206; Ladue v. Seymour, 24 Wend. 60; Jewett v. Schroeppel, 4 Cowen, 564; Coon v. Greenman, 7 Wend. 121; Merrill v. Ithaca and Oswego R. R. Co., 16 Wend. 586.)

Such was clearly the rule before the Code, and although the same specialty in pleading may not be now required, the same certainty in the statement of material matters is still required; The plaintiff is now obliged to state the facts which constitute his cause of action, which means, as has been well expressed, “the facts to which the law is to be applied, and from which the judgment of the court is to be deduced.”

• It cannot with propriety be said that the plaintiff has fully stated the facts constituting his cause of action, if his right to a recovery depends upon the fulfilment of special stipulations- in a written contract, and he omits to state the contract itself, and allege a compliance with its conditions as part of his case. We suppose the rule to be the same now as it was before the Code; where the contract, supposing it to be fully executed, contains no special stipulation or condition requiring an averment of performance or fulfilment, a complaint in the general form, for work and labor, stated with sufficient particularity to enable the court, if the facts be admitted or proved, to render judgment, would be sufficient now, as a declaration on the. common counts would have been before the Code, though the production of the contract on the trial would stiff be necessary, for the reasons above stated; but where the contract contains special stipulations or provisions, a compliance with which is necessary to be shown before the plaintiff would be entitled to a verdict, then the contract becomes necessarily a part of the plaintiff's case, and should be set out at length, or in substance, with proper averments, to show that the conditions to the plaintiff’s right of recovery have all been complied with. Such a contract, and such a' performance, or fulfilment of conditions, become facts constituting the plaintiff’s cause of action.

The plaintiff, in the present case, has evidently proceeded upon ' the idea that, the work being fully performed, he had a right to disregard the special contract, except as part of his proof; but on looking into the instrument itself, we find it to contain provisions which constitute conditions precedent to any right of recovery, and performance of which, should, therefore, have been alleged.

Thus, the work was to have been done “in strict conformity” with certain specifications, and the payments were to be. made on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.

It may perhaps be conceded, that an allegation of the filing of these certificates would have raised a sufficient presumption that the work had been done in conformity with the specifications, so as to haye dispensed with a distinct averment of compliance with the latter condition; but it is manifest that the plaintiff should have averred, at least, thus much, to show himself entitled to any thing.

The filing of proper certificates was a strict condition, precedent to the obligation of payment. (Smith v. Briggs, 8 Denio, 73.)

As the case stood, therefore, when the plaintiff rested, had the complaint been dismissed on the defendant’s motion, the ruling of the Judge in that respect, would not have been disturbed by the General Term; but the motion was denied, doubtless, in order that other questions involved in the case, materially affecting the merits, might receive the consideration of the court, and as the power of the court to allow amendments in pleadings is now almost unlimited, we think the direction thus given to the case quite as well as to have driven the party to a new action, and subjected him to the entire costs of the present suit.

The principal question thus reserved for consideration was the effect of the certificates of the Superintendent of Wharves— whether they concluded the defendants as to the payment of the price agreed upon, the defendants having offered to show that the plaintiff had failed to perform the work according to the terms of the contract, and that it was but partially and unskilfully done, and the learned Judge having overruled the offer, on the ground that the certificates concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates.

In considering this question we shall, as requested by the counsel on the argument, also express our views as to the form in which the certificates in question were made.

They simply state that the plaintiff is entitled to his first and sécond payments on the contract for rebuilding pier at the foot of Charlton street, and are signed by Robert Earl, the Superintendent of Wharves, only, there being no signature of a person answering the designation of “Inspector,” as provided in the contract.

By the terms of the contract, the first payment was to be made when the piles were driven, and the caps and ranging timbers laid on; the second, when the entire work was completed, and the third at the expiration of fifteen days thereafter, provided the said pier should be then in good condition, and in every respect according to the specification, and then follows the clause that these payments are to be made on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.

In Smith v. Briggs, (3 Denio, 73,) the exact language of the certificate required to be given was specified in the contract, and the court held that the giving of the certificate in the very terms prescribed, or, at least, in its substance and spirit, was a condition precedent to a right of action.

The contract in the present case does not provide for the form of the certificates, nor direct what they shall contain; but, construing them in the connection in which they are mentioned in the contract, we think it clear that it was intended by the parties that they should contain something more than a mere positive assertion that the plaintiff was entitled to his payment. They should have designated the condition and progress of the work at the dates at which they were given — and there is a good reason for this, for otherwise the defendants could not so readily detect a fraud on the part of their officer, should one be attempted.

In the absence of such fraud, or of a palpable mistake on the part of the officer'making the certificates, we suppose that the filing with the Street Commissioner of proper certificates, within the meaning and in pursuance of the terms of the contract, would oblige the defendants to make the payments stipulated for in the contract.

While we cannot approve of the form of the certificates in question, as not expressing what we think it was intended they should express, we should feel reluctant, in the present action, to adjudge them wholly insufficient for that reason, as they were, for all that appears, made in good faith, and have probably followed a common formula in building contracts of this kind. In certifying that the plaintiff was entitled to payment, the officer undoubtedly supposed that he was, in effect, certifying that the work was in that stage of progress or completion, at which, by the terms of the contract, the payment was due; and we should probably, for the purpose of this action, give this construction to them, were it not for another defect in them, already hinted at, and which we consider fatal. They are not signed by any officer answering the designation of “ Inspector.”

The contract provides, that “ the whole work and materials are to he nnder the direction of the Superintendent of Wharves, and the Inspector, to he appointed,” and that “any work done, or materials furnished, which shall not he satisfactory to them, shall be immediately removed, and other work and materials substituted, until they shall he satisfied.” And then, as before stated, provides, as a condition of payment, for the filing with the Street Commissioner of certificates by both these officers.

It is urged, in answer to this objection, that the appointment of the inspector rested with the defendants, and that they are therefore precluded from raising it.

We cannot accede to this view of the matter. It was a part of the contract between the parties, that an inspector should be appointed, and it was the plaintiff’s right to have the appointment made.

There is nothing to show that an inspector was not in fact appointed, nor, assuming that he was not so appointed, that it was exclusively the defendants’ duty to appoint him; and even if it were so, the plaintiff might have enforced the performance of it, if refused by the defendants.

It is enough, that the court sees that the certificates axe not complete by the very terms of the contract, without the signature of that officer, and we hold this defect to be fatal to the certificates in question.

The attention of the Judge was not called to this omission on the. trial, and by an equally singular oversight, no notice appears to have been taken of another omission in the plaintiff’s proof, and which would, of itself, even supposing the certificates proved to have been sufficient, render a new trial necessary.

The plaintiff proved the filing of but two certificates; whereas, the final payment was not to be made until the third certificate was also filed; and it is clear, that the plaintiff could not recover for the whole work 'Until he had shown that this condition had also been complied with.

It was contended that the defendants had accepted the work by receiving rent from their tenant after the repairs were completed, and must, therefore, be beld to Rave waived tbe proof of. a strict compbance with tbe terms of tbe contract.

"We do not coincide in tbis view. Tbe premises were rented before tbe contract with tbe defendants was entered into; and tbe tenant, tbougb released from rent during tbe time tbe work'was in progress, bad a right to resume tbe possession immediately after its completion; and as, from tbat time, be was legally bound to pay tbe rent, tbe defendants were legally entitled to receive, it — . tbeir doing so could bave no effect whatever. on tbeir rights and obligations under tbeir contract with tbe plaintiff. There must, therefore, be a new trial, with costs to abide tbe event.


text:
    George W. Walling v. The Mayor, &c., of the City of New York.
    The plaintiff, -who -was a policeman, appointed to perform his. duties as such at the office of the Chief of Police, in the city of New York, claimed to he entitled, under certain acts of the Legislature and ordinances of the Corporation, to an annual salary of $600 during the whole period of his service. Held, that haying been detailed to perform a special duty, he- was only entitled, under an ordinance of the Common Council passed August 18, 1861, as amended by an or- . dinanee passed November 14, 1851, to be compensated for his services at the rate of $500 per annum, but that under an ordinance passed Sept. 16, 1863, he was entitled to be so compensated from the 1st of January, 1853, at the rate of ⅞$600 per annum.

      Held, that section 10 of the act amending the charter of the city, passed April 12, 1853, by its reasonable construction, is not applicable to officers whose salaries or rales of compensation are fixed by a general ordinance and not by a special contract with each individual.
    (Before Oakley, Ch. J., Duke, and Slosson, J. J.)
    Feb. 24, 1855.
    Motion for judgment on a verdict in favor of tbe plaintiff for $203, taken, subject to tbe opinion of tbe court at General Term. That the-case, may be properly understood, it is necessary to set forth, tbe pleadings.. Tbe complaint is as follows: “ Tbe above-named plaintiff complains as follows: Tbat tbis plaintiff, from and prior to tbe first day of September, 1851, until after tbe fourteenth day of September, 1853, was a policeman of tbe city of New York, duly appointed as suck, and entitled to tie exercise of snci office as policeman, and entitled to tie compensation allowed by law tierefor.”
    And plaintiff furtier says, tiat prior to tie 1st day of September, 1851, ie was duly detailed by tie Mayor of said city to attend as suci policeman, and perform tie duties of policeman, at tie office of tie Ciief of Police, in said city, during tie wiole of tie above specified period, from prior to tie said 1st day of September, 1851,- until tie 14th day of September, 1858, and did; during tie wiole of said period, perform suci duties. And plaintiff furtier says, tiat by an act of tie Legislature of tie State of New York, entitled “ An Act authorizing tie Common Council of tie city of New York to regulate tie salary of policemen in said city,” passed April 10, 1850, tie Common- Council of said city were duly empowered and authorized to fix tie compensation of policemen.
    And the plaintiff further says, tiat tie said Common Council, in due form of law, passed an ordinance, on tie 18th day of August, 1851, in tie words and figures following, to wit:
    AN ORDINANCE.
    Tie Mayor, Aldermen and Commonalty of tie city of New York, in Common Council convened, do ordain as follows:
    § 1. Tie salary of captains of police is hereby fixed at tie sum of eight hundred dollars per annum.
    §2. The salary of the assistant captains of police is hereby fixed at tie sum of seven hundred dollars per annum.
    § 3. Tie compensations of sergeants of police, and policemen performing post or patrol duty in their respective wards, shall be for each and every day’s service, at tie rate of six hundred dollars per annum.
    § 4. Tie salary of policemen detailed by tie Mayor or Chief of Police for tie performance of any special duty is hereby fixed at tie sum of five hundred dollars per annum.
    § 5. This ordinance shall take effect on tie first day of September next.
    And tie plaintiff furtier says, tiat tie said Common Council, on the 14th day of November, 1851, in due form of law, passed another ordinance, in the words and figures following, to wit:
    An Ordinance amending an Ordinance fixing the compensation of Captains of Police and Policemen, approved August 18th, 1851.
    The Mayor, Aldermen and Commonalty of the city of New York in Common Council convened do ordain as follows:
    § 1. The third section of the ordinance prescribing the compensations of captains and assistant captains of police, sergeants of police and policemen, approved August 18th, 1851, shall be amended by striking out the words “for each and every day’s service at the rate of,” so that said section, when thus amended, shall read as follows:
    § 2. The compensation of sergeants of police and policemen performing duty in their respective wards, shall be six hundred dollars per annum.
    | 3. This ordinance shall take effect immediately.
    And the plaintiff farther says, that the said Common Council on the 15th day of September, 1853, in due form of law, enacted as follows:
    “Resolved, that the pay of the detailed policemen be and is hereby fixed at the same rate as all other policemen, viz., six hundred dollars per annum, to take effect from the first day of January, 1853.”
    And plaintiff further says, that during the aforesaid period, to wit, from the first day of September, 1851, to September 14th, 1853, he received for his said services as policeman only at and after the rate of five hundred dollars per annum, whereas the amount actually due to plaintiff for his aforesaid services, under the ordinances aforesaid, over and above what he so received, is two hundred and three dollars and eighty-four cents; which amount the plaintiff duly demanded from Azariah C. Flagg, Esq., Comptroller of the city and county of New York, and which said Comptroller refused to pay.
    Wherefore, the plaintiff demands judgment for the said sum of two hundred and three dollars and eighty-four cents, with interest from the twenty-fourth day of January, 1854, besides costs.

      The answer of the defendants to the complaint herein, respect-folly shows to the court:
    First. — That they admit that the said plaintiff was, during the periods mentioned in said complaint, a policeman of the city of New York, and was detailed by the Mayor of said city to attend as such at the office of the Chief of Police, in said city, during the period therein alleged, and they aver that the said plaintiff was appointed as such policeman on or about May 10th, 1850, for the term of four years thereafter.
    Second. — And these defendants, further answering, admit the passage of the various resolutions in said complaint, set forth., creating and fixing the salaries of captains, assistant captains, sergeants and policemen. And these defendants, farther answering, aYer that it is expressly provided by the act “entitled an act authorizing the Common Council of the city of New York to regulate the salary of policeman in said city,” passed April 10th, 1850: “That (§ 1) the compensation of officers and patrol-men named in this act shall hereafter be fixed by the Common Council, and when so fixed shall not be increased or diminished during the time for which they were, or shall be hereafter, appointed.”
    Third. — And these defendants, further answering, aver that by an act of the Legislature of the state of New York, entitled, “An act further to amend the charter of the city of New York,” passed April 12th, 1853, it is provided as follows: (§ 10.) “No additional allowance beyond the legal claim under any contract with, the Corporation, or for any service on its account, or in its employment, shall ever be allowed.”
    And these defendants, farther answering, aver that the ordinance in said complaint referred to, passed September 15th, 1853, raising the pay of detailed policemen to six hundred dollars per annum, to take effect from the first day of January, 1853, was in violation of the first section of the said act of the Legislature, passed April 10th, 1850, and of the said 10th section of said amended charter, (the salary of said plaintiff having been fixed by the ordinance passed August 13th, 1851, at five hundred dollars per annum, as alleged in said complaint,) and consequently was illegal and void.
    The said defendants, further answering, aver that they have paid to the said plaintiff all that was due to him for services rendered as such detailed policeman, and they deny that there is due to the said plaintiff from these defendants therefor, the sum mentioned in said complaint, or any sum whatever.
    Therefore, the said defendants, pray that the said eomplaint may be dismissed, with costs.

      H. L. Clinton, for the plaintiff,
    moved for judgment- on the verdict, and argued as follows:
    I. The third section of an ordinance passed by the-Common Council, on the 18th day of August, 1851, had the effect, in law, to fix the salary of all policemen at $600 per year, notwithstanding the attempt by the' fourth section of the same-ordinance to limit the pay of detailed men to $500 per annum.
    An act entitled “ An act - authorizing .the Common Council of the city of New York to regulate the salary of policemen in said city,” passed April 10, 1850, (see Laws. 1850, p. 668,) provides that “The compensation of officers-and patrol-men named in--this act shall hereafter be fixed by the Common Council,” &c.
    Under this act of the Legislature the Common Council, in the 3d section of the ordinance in question, enacted that “ The' compensation of sergeants of police and policemen performing post or patrol duty in their respective wards, shall bej for each and every day’s service, at the rate of six hundred dollars per annum.” This section was amended by an ordinance of the Common Council, passed 14th November, 1851, so as to read, “ The compensation of sergeants of police, and policemen performing duty in their respective wards, shall be six hundred dollars per annum.”
    The language of the next section is, “ The salary of policemen detailed by the Mayor or Chief of Police, for the performance of any special duty, is hereby fixed at .the sum of five hundred dollars per annum.’.’
    This 4th section, I maintain, is inconsistent with the preceding one, and directly contrary to the spirit and letter, of the act of 1850, which gave the Common Council power to fix the salary-of policemen, and altogether nugatory and void.
    II. In any event, the plaintiff is entitled to compensation from the first of January, 1853, to the fifteenth day of September of that year, when the Common. Council passed an ordinance providing “That the pay of the detailed policemen be, and is hereby, fixed at the same rate as all other policemen, viz., six hundred dollars per annum,, to take effect from the first day of January, 1853.”
    There is nothing in the act of 1850 prohibiting the Common Council from passing the ordinance last named.. The entire section of the Act of 1850, applicable to this subject, is in these words: “ § 1. The compensation of officers and patrol-men named in this Act' shall hereafter be fixed by the Common Council, and when so fixed, shall not be increased or diminished during the time for which they were or shall be hereafter appointed. Police officers, when sent out of the county on public business, shall be allowed all necessary expenses, upon the same being sworn to and approved by the Mayor, and allowed by the Board of Supervisors.”
    Detailed men, as well as those performing ordinary duty, are “patrol-men.” The salary of patrol-men, or those doing “post or patrol duty,” was fixed by the 3d section of the ordinance of the 18th of August, 1851. The expression is, “performing postor patrol duty in their respective wards.”
    If detailed men performed “ patrol” duty, and were therefore “patrol-men,” their salary then became fixed at $600 per annum. If they were not “patrol-men,” then the statute does not on its face prohibit the Common Council from raising their salary whenever they see fit. The law imposes upon all policemen the obligation to do duty both in and out of the respective wards where they reside — at all events, whenever their superiors in command shall so direct them. The idea is whimsical and fantastical, of making the locality of their services a criterion as to salary.
    The service is the same, whether performed in one- ward or another, or in different wards, as their superiors in office shall in their wisdom direct. The statute recognizes no such “ distinction without a difference.”
    IH. The 10th section of the statute entitled “ An act further to amend the Charter of the City of New York,” passed April 12th, 1853, which provides that “no additional allowance beyond the legal claim under any contract with the corporation, or for any service on its account or in its employment, shall ever be allowed,” has no application to this case.
    Here the rule laid down in Dwarris on Statutes, 558 :• “A thing which is in the letter of the statute is not within the statute unless it be within tbe meaning'of the enactment,” should be borne in mind.
    The whole of this section relates to contracts, express or implied. This is the subject matter of the section. Within every rule of legal construction or even of verbal criticism, the language employed should be construed with reference to that subject matter. Throughout this statute, where the word “contract” appears, it is palpable that it refers to an express contract. This is sufficiently apparent from the 12th section, which is in these words: “ § 12. All work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than two hundred and fifty dollars, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice for the frill period of ten days; and all such contracts, when given, shall be given to the lowest bidder with adequate security. ' All such, bids or proposals shall be opened by the heads of departments advertising for them, in the presence of the Comptroller and such of the parties making them as may desire to be present.” >
    The expression in the 10th section, “under any contract with the corporation” means a contract over $250, which must be made in the particular manner designated by the 12th section.
    The phraseology “ or for any service on Its account, or in its employment,” refers to work done, not “involving an expenditure of more than two hundred and fifty dollars,” and to cases where there is no express contract, but one implied in law.
    The latter clause of the 10th section was necessary, in order to prohibit the Common Council from paying “ additional allowance beyond the legal claim,” existing against them, where the amount involved does not exceed $250. The whole object of this section was to prevent contractors from pillaging the public treasury.
    “ The real intention will always, in statutes, prevail over the literal sense of the terms.” (Dwarris on Statutes, 557.)
    The doctrine has been fully settled By the court of last resort, that the right to compensation, as regards salaried officers, grows out of the rendition of the services, and not out of any contract between the government and the officer, that the services shall be rendered by him. (Conner v. The Mayor, &c., 1 Sel., 285; Warner v. People, 2 Denio, 272.)

      The plaintiff is clearly entitled to judgment for the amount, for which a verdict was taken.

      R. J. Dillon, counsel for the Corporation, contra.

    I. The plaintiff is not entitled to recover. 1. By the act entitled “ An Act authorizing the Common Council of the City of New York to regulate the salary of policemen in said city,” passed April 10th, 1850, the Common Council have an exclusive discretion in regulating and graduating the compensation of the-various members of the police department. (Laws of 1850, p. 668.) 2. The only limitation placed upon their discretion in this respect, is that which prevents them from increasing and diminishing the compensation when so fixed during the time for which the officer or patrol-mañ shall have been appointed. (Id.) 3. The ordinance of August 18th, 1851, making a distinction between the salaries of patrol and detailed policemen, was, therefore, valid.
    II. The ordinance of the Common Council, passed September 15th, 1853, was illegal, and tfull and void. 1. The compensation of the plaintiff having been “fixed” by the ordinance of August 18th, 1851, the Common Council have no power to increase or diminish the same during the time for which the plaintiff had been appointed. (Laws of 1850, p. 669.) The People, ex rel, Stuart, v. Edmonds. Opinion — Clerke, J., Special Term; Morris, J., General Term. 2. The “Act” in relation to the police department in the city of New York, passed April 13th, 1853, gave the Common Council no power to increase the compensation of officers, policemen, or doormen, who were appointed under the act of 1850, and whose terms had not expired. 3. The ordinance is in conflict with the provisions of the 10th section of the Amended Charter of 1853. The only “ legal claim” which the plaintiff had against the corporation at the time of its passage, was a claim to compensation at the rate of $500 per annum, under the ordinance of August 18th, 1861.
    LV. The complaint should be dismissed, with costs.
   By the COURT,

Duer, J.

The decision of the court is, that the plaintiff, as a policeman detailed to perform a special duty, was only entitled, under the ordinance of the corporation, passed the 18th of August, 1851, as amended by the ordinance passed the 14th of November, 1851, to be compensated for his services at the rate of $500 per annum, but that under the ordinance passed the 15th of September, 1853, he was entitled to be so compensated from the 1st of January, 1853, at the rate of $600 per annum. The grounds of our decision are

1st. That the Common Council, under the act of the Legislature passed April 10th, 1850, referred to in the complaint, were felly authorized to make a distinction between different classes of policemen, and to regulate their salaries according to the nature of the services which each class was required to perform.

2d. That the ordinance of the 15th of September, 1853, giving . to the detailed policemen a salary of $600 per annum, from the 1st of January, 1853, was a lawful exercise of the discretionary power given to the Common Council by the act of the Legislature, amending the charter of the city, passed April 12, 1853.

And lastly, That the exercise of this discretion was not restricted by the 10th section of the same act — that section not being applicable, in its reasonable construction, to officers of the corporation whose salaries or rates of compensation are fixed, not by a special contract with each individual, but by a general ordinance. In conformity to these views, and according to a calculation we have caused to be made, the plaintiff is entitled to recover, including interest on the balance due to him, only the sum of $77.83. The verdict must be therefore reduced to this sum, and on the verdict so reduced, judgment must be entered in his favor, with costs.