McSpedon agt. Mayor, &c., of New York. expenses justly and properly incurred, and paid by them in the discharge of their duty on such traverse, including a reasonable counsel fee to their counsel upon the trial of the issue of traverse before the said referees, before whom the same was tried, and all other disbursements for witness fees, and otherwise justly and properly incurred and paid by them in such proceedings, upon proper proof thereof. And the committee may give proof of the items disallowed for deficiency of proof before the court referred to in the exceptions taken by the committee to the report of the said referee above mentioned, if the proof thereof was not before given before said referee. Neither party to have costs upon the said exceptions, or upon this motion. NEW YORK SUPERIOR COURT. THOMAS MCSPEDON and CHARLES W. BAKER agt. THE MAYOR, &c., OF THE CITY OF NEW YORK. Where the public printing of the corporation of the city of New York involves the expenditure of more than $250, it should be done by contract founded on sealed bids, &c., in pursuance of the 12th section of the act of 1853 (Sess. L., 1853;) and this is the law, whether the printing is required for the legislative or executive department. Therefore, where the work done by the plaintiffs, and for which this action was brought, was work which should have been contracted for in the manner and with all the formalities prescribed in the 12th section of the act of 1853; and as the contract for it was not made in that manner, Held, that it was null and void, and could not be enforced against the defendants. Also held, that the plaintiffs could not recover for such work under a former contract made with the defendants in 1848, (for one year only) for similar work, although one board of the common council in 1854 passed a resolution recommending that the old contract be continued. Nor could the plaintiffs recover on an implied assumpsit, that the defendants, having accepted the work, were bound to pay what it was reasonably worth, notwithstanding the express contract under which it was done, was null and void. The defendants can make no contract or promise, express or implied, except in the manner and with all the formalities prescribed by statuto. McSpedon agt. Mayor, &c., of New York. New York General Term, March, 1861. BOSWORTH, WOODRUFF and WHITE, Justices. THIS action was brought by the plaintiffs to recover from the defendants the sum of three thousand dollars, with interest from January 1st, 1855, for printing and binding, at the defendants' request, fifteen hundred copies of a book known as "The City Charter, with Kent's Notes." The complaint sets forth, that on December 16th, 1853, in compliance with the mandate of a resolution passed that day by the defendants' common council, the clerk of said common council retained and employed the plaintiffs to print and bind fifteen hundred copies of the book known as "The City Charter, with Kent's Notes," including all the amendments to that date, for the price or compensation of two dollars for each copy. That, pursuant to such retainer and employment, the plaintiffs printed and bound fifteen' hundred copies of said book, with all the amendments required, and delivered them to the defendants, who accepted them. That the defendants thereafter, on June 18, 1855, by resolution of their said common counsel, directed the comptroller of said city to pay the plaintiffs their bill of $3,000 for printing and binding said books, which bill the clerk of the common council had before then certified to be correct; but the defendants neglected and refused to pay the same. The complaint also contains two other counts, or statements of causes of action, after the manner of the common counts, in assumpsit, under the old practice; one for goods sold and delivered by the plaintiffs to the defendants, at their request, of the value of $3,000; and the other for an indebtedness in the sum of $3,000 for work, labor and services done and performed, and for materials furnished, by the plaintiffs for the defendants, at their request, in and about the printing and binding of fifteen hundred copies of the book known as "The City Charter, with Kent's Notes;" McSpedon agt. Mayor, &c., of New York. a promise to pay and a breach of said promise, and demand of judgment, being stated in each count. The answer admits the passage of the resolutions of December 16, 1853, and June 18, 1855, but avers that these resolutions are in violation of the 12th section of the act of the legislature of the state of New York, passed April 12, 1853, amending the charter of the city of New York, and that they conferred no authority whatever upon the clerk of the common council to employ the plaintiffs to perform the work mentioned in the complaint, nor upon the comptroller to pay for it; and that the defendants are not bound by the same, nor in any manner liable to pay for the work done under them. The answer also states that if the work had been submitted to contract, pursuant to said 12th section, it would have been done for one-third of the price charged by the plaintiffs; and it further states that the goods and work, and labor and materials set forth in the second and third counts of the complaint are the same goods, work and labor and supplies, and the same cause of action mentioned in the first count, and were sold and delivered and furnished and performed under the resolutions above mentioned, and in violation of said 12th section of the amended charter, and not otherwise; and that the defendants are not indebted to the plaintiffs therefor in any sum whatever; and prays that the complaint may be dismissed with costs. The 12th section of the act amending the charter of the city of New York, referred to by the defendants, is as follows: "All work to be done and all supplies to be furnished for the corporation, involving an expenditure of more than $250, shall be by contract, founded on sealed bids or proposals, made in compliance with public notice for the 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 McSpedon agt. Mayor, &c., of New York. comptroller and such of the parties making them as may desire to be present." as In April, 1849, an act had also been passed by the legis lature of the state, amending the charter of the city of New York, by which the executive power of the corporation was vested in the mayor and certain heads of departments created by the act, and in such other executive officers, should be from time to time created by law; and the common council, and every member and committee thereof, were prohibited from performing any executive business whatever, except such as should be specially imposed upon them by law, and except that the board of aldermen, might approve or reject the nominations of the mayor as therein provided. The act apportioned to each of the executive departments, created by it, the cognizance or control of certain specific matters pertaining to the executive powers or business of the corporation. The several departments, however, were made subject to the legislative regulation and direction of the common council, so far as not inconsistent with the act; and the common council was authorized to assign to them any duties not inconsistent with the same act. The cause was tried by the court without a jury in December, 1857. On the trial, the plaintiffs proved that a valid contract in writing had been made between them and the defendants, bearing date on July 3, 1848, whereby they agreed to supply the defendants, for one year from the date of the contract, with all the printing and binding, mentioned in specifications annexed to the contract, which the plaintiffs should require, and at the prices in said specifications stated; the printing and binding to be done from time to time as it might be wanted; the articles and work to be of the best quality, and the printing to contain about the same matter per page as in the samples, and the quantities to be varied as might be required; and all articles not McSpedon agt. Mayor, &c., of New York. embraced in the specifications to be furnished at prices strictly proportionate to those specified. The specifications related strictly to the printing and binding of the proceedings, minutes and documents of the two boards of the common council, at stipulated prices per page or title. This contract was made in July, 1848, upon written proposals or bids for the work, having been invited by authority of a resolution passed by the common council, and the plaintiffs being the lowest bidders, were awarded the contract. The contract expired by its own limitation on July 3d, 1849. On the 30th of May, 1849, in order to carry into effect the provisions of the act of 1849, amending the charter, an ordinance organizing the departments of the municipal government of the city of New York, and prescribing their powers and duties, was passed by the common council and approved by the mayor. By section 507 of this ordinance, it was declared that until otherwise provided by ordinance, the ordinances and resolutions then in force should be applicable to the public printing; and neither in the act of 1849, nor in this general ordinance of May 30, 1849, is the subject of printing referred to any executive department; but on the contrary, throughout the ordinance the public printing is carefully reserved from the operation of any of its provisions, and is especially retained by the common council under its own cognizance; and, no further ordinance affecting the subject having been passed by the common council prior to the performance of the work for which the action is brought, the plaintiffs continued to do all the public printing upon the terms stipulated in the old contract of July, 1848. It was also shown at the trial that on one or two occasions after the passage of the resolution of December 16th, 1853, authorizing the employment of the plaintiffs to print "The City Charter with Kent's Notes," the common council had propositions before them providing for making new contracts respecting the public printing, but no definite |