I agree in the reversal of this judgment, upon the ground that the work was not one of those acts of immediate and imperative necessity which dispensed with a compliance with the provisions of the •charter in respect to sealed proposals or to which it was never intended to apply (McLaren agt. The Mayor, 1 Daly; Smith agt. The Mayor, 21 How., 1; Harlem Gas-light Co. agt. The Mayor, etc., 33 N. Y., 329; In the Matter of Dugro, 50 id., 517).

After the vessel had been raised upon the dry dock at a very trifling expense, which could be incurred without sealed proposals, as it would not amount to $1,000, there was no pressing emergency for the immediate beginning of the work, ■and where it involved the very large expense that was *262incurred, over $23,000, the provision in the charter should have been complied with, which would have led only to a delay of about ten days.

The testimony of one of the plaintiffs that he could not tell what was required to be done until he had stripped the vessel did not establish that a contract could not have been made for a fixed sum for the necessary repair of the school ship upon sealed proposals, after receiving which the contract, as the charter provides, could be awarded to the lowest bidder; and it was shown by other experts that, though not usual, the estimates can be made and the repairing of one ship can be done by contract.

The answer of the witness Bell that the work was not advertised, because it was impossible, was not responsive to the question put to him. He should not have been allowed to add to his answer his conclusion that to advertise was impossible.

The defendants’ counsel moved that this part of his answer be stricken out, but the judge said he would let it stand, which was equivalent to holding, as the judge gave no instruction to the jury that the jury might regard it as proper testimony in the case.

An exception was taken to what the judge said, and this testimony must be disregarded upon this appeal.

The case was one, in my judgment, in which the provision in the charter could and should have been complied with. It is upon this ground alone that I give my assent to the reversal of the judgment; for I do not agree that this was not work to be done for the city, within the meaning of the charter, for the reason that the school ship, and every thing connected with its control and management, was intrusted by law to the commissioners of charities and correction.

As I agree, for the reason above stated, that the judgment must be reversed, it is not necessary for me to set forth the reasons why I think that the city would be answerable for the repair of the vessel where the work, from the cireum*263stances, was an act of immediate and imperative necessity, or to point out in what respect the decision of the court of appeals in Maximilian agt. The Mayor is distinguishable.

Action for work, labor and materials furnished in repairing the school ship Mercury, pursuant to contract with the commissioners of the department of charities and correction. Defense — that contract was not made after public advertisement for bids and proposals (charter of 1870, sec. 105; charter of 1873, sec. 91); that only two of the commissioners signed the requisition upon the comptroller for the payment of plaintiff’s claim (charter of 1870, secs. 100, 101, 102, 105); that the work, labor and services were only worth the sum of $16,000. Plaintiff recovered the whole amount claimed.

It appears that the school ship Mercury was a vessel owned by the department of charities and correction, in use as a school for the reformation of boys under the charge of said *258commissioners. She commenced to leak in April, 1873, and on the twenty-first of that month, by resolution of the department, was “turned over to captain Knapp for such repair as may be necessary on consultation with captain Geraud and on report to this board.” On May 12, 1873, the secretary of the department addressed a letter to William H. Knapp, stating that the report of captain Geraud and William Faulks and said Knapp on repairs to the school ship Mercury was accepted by the board, and the work ordered to be done by these plaintiffs. The repairs were made by plaintiffs, and there seems to be evidence enough to support the claim that they were necessary and worth the amount charged.

In September, 1873, two of the commissioners of the department (the other refusing to sign) certified that they had examined the bills of plaintiffs specified in the schedule annexed, amounting to $23,011.48, and that they were just and correct; that the articles enumerated in said bills had been received in good condition by and for the necessary and exclusive use of the said department; that the prices charged therein are reasonable and proper, and that the amount of said bills do not exceed the unexpended balance of the appropriation duly made to the said department therefor.

I think it may properly be urged that the repairs ordered by the commissioners do not come within the provisions of the charter of 1870 (sec. 105), or of the charter of 1873 (sec. 91), not being work' or supplies “ furnished for the corporation,” i. e., for the mayor, aldermen and commonalty of the city of Kew York. The management of their department by the commissioners of charities and correction was, in that respect, wholly independent of the common council. The department, in the care and management of the paupers and criminals confided to it, and in the care of boys whose custody for purposes of reformation devolves upon it by law, act not as agents of the municipal corporation, but as public officers, agents' and servants of the public at large (Maximilian agt. The Mayor, 62 N. Y., 160).

*259In establishing and maintaining a school ship for the reform of boys, they do not do any act nor perform any duty for the corporation, in what may be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit and advantage as a corporation, though accruing ultimately to the benefit of the public. The defendant gets no benefit nor emolument as a corporation from the work furnished by plaintiffs ; it was ordered by the department as the agent, not of the corporation, but of the state, in the discharge of its duty to a class needing its control for the purpose of reformation.

But the conclusions which establish that this was not work done for the corporation, through its agents, nor for the benefit of its property, and that the provisions of the charter as to making the contract, advertising, etc., do not apply, dispose of the question of ultimate liability of defendant against the view taken by plaintiffs in bringing this action. I am not able to see how an action can be maintained against the corporation for work not ordered by it or its agents, and not rendered upon or in respect of its corporate property, but done at the request of the public officers discharging the duties of the state, in this particular locality,to wards the pauper and criminal classes. The case of John B. Greene agt. The Mayor, etc. (Ct. Appeals, Mch., 1875; 60 N. Y., 303), presents a different case. There a contract was directed to be made by the corporation; through its commissioners of public works, for laying certain water pipes, and the provisions of the charter did not apply because of the terms of the special act (chap. 213, Laws of 1871) authorizing the work. The corporation was liable, because the contract was made in its name and in respect of its property, and it was specially authorized by the act to raise the money to defray the expense.

In this case the disbursement of the moneys raised and appropriated for the department of charities and correction is made by the comptroller upon certificates of the department.

*260The appropriations for the department are made upon its annual estimates sent to the hoard of estimate and apportionment at least thirty days before the first of August, such estimates being for the ensuing year (charter of 1873, sec. 112). Where these sums are raised by tax and deposited in the city treasury they are subject to the drafts of the commissioners-of public charities and correction, and the duty of the corporate officers of the city is only to pay out upon proper vouchers certificates or requisitions upon the amount estimated, appropriated and raised for each particular item of estimated expenditure the money in the treasury applicable thereto.

If there be no such money, or if the appropriation be expended upon the drafts of the department, no payment can be made. If no such appropriation has mer been made, upon what principle is the corporation liable to action, judgment and the seizure of its private property to satisfy the claim ? In this case it clearly appears that the necessity for the repairs to the school ship arose suddenly and were not discovered until' April, 1873. There had certainly been no estimate made in the preceding year by the department for such contingency and forwarded by them to the board of apportionment (charter, sec. 112), nor any money raised applicable to the purpose. Without such proof the plaintiff fails to establish a case against the city, if, indeed, with such proof the action may be maintained. The city may be sued upon all its contracts and all corporate liabilities, and by the consolidation act of 1873, for all matters formerly of county charge, and within the jurisdiction, as such, of the board of supervisors of the county of Hew York; but the expense incurred by the department of charities and correction for these repairs does not fall within those terms. The money raised by the supervisors annually for the expenses of the department is in lieu of all taxes in the county for the relief and support" of the poor thereof, and for the support and expenses of the county criminals (act of 1860, chap. 510, sec. *26120). The sum to be raised is to be determined by the commissioners, and the supervisors had no authority to increase it (same section). If or do the corporate officers possess the power to raise and apply to the purposes of the department other sum or sums for other objects than the commissioners request or are required by law, as I read the provisions of the charter (1873, sec. 112). But if not necessary at present to discuss the question whether the plaintiff’s remedy is by action against the corporation or by proceedings against the corporate officer charged with the duty of payment in case a ■sum remains in the city treasury or was placed there for the purpose of paying for repairs to this vessel or to property under the charge of the commissioners, the judgment must be reversed and a new trial ordered, for the reason that it does not appear in the case that there is a fund in the city treasury applicable to the payment of the amount claimed by plaintiffs.

I concur: F. W. Loew.

Judgment reversed and new trial ordered, costs to abide event.