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LORD et al. v. THOMAS.

64 NEW YORK, 107.-1876.

Action to have chap. 323, Laws of 1874, declared unconstitutional and void so far as it authorized defendant, as superintending builder of the State Reformatory at Elmira, appointed under said act, to relet a contract for the brick and stone work of said building, and to restrain defendant from entering into any such new contract. Judgment for defendant, affirmed at General Term. Plaintiffs appeal. Plaintiffs were the assignees of a contract, authorized by a previous law, for the construction of such brick and stone work.

ANDREWS, J. This action cannot be maintained.

The State cannot be compelled to proceed with the erection of a public building, or the prosecution of a public work at the instance of a contractor with whom the State has entered into a contract for the erection of a building or the performance of the work. The State stands, in this respect, in the same position as an individual, and may at any time abandon an enterprise which it has undertaken, and refuse to allow the contractor to proceed, or it may assume the control and do the work embraced in the contract, by its own immediate servants and agents, or enter into a new contract for its performance by other persons, without reference to the contract previously made, and although there has been no default on the part of the contractor. The State in the case supposed would violate the contract, but the obligation of the contract would not be impaired by the refusal of the State to perform it. The original party would have a just claim against the State for any damages sustained by him from the breach of the contract, and although the claim could not be enforced through an action at law, the remedy by appeal to the legislature is open. to him, which can, and it must be presumed will, do whatever justice may require in the premises. This remedy is the only one provided in such a case, and this is known to the party contracting with the State and the courts cannot say that it is not certain, reasonable, and adequate. See Coster v. Mayor &c., 43 N. Y. 408.

If the court should undertake by its order or judgment to

protect the contractor in the possession of the building or premises to enable him to proceed with the work under his contract, he would still be left without remedy to obtain payment except through an appropriation by the legislature. A law of the State suspending or discontinuing a public work, or providing for its performance by different agencies from those theretofore employed is not, therefore, subject to any constitutional objection because the change would involve a breach of contract with a contractor with whom it had entered into a contract for doing it. That a person who has employed another to perform labor may refuse to allow the other party to proceed, and that the latter cannot thereafter insist upon specifically performing the contract, was decided in Clark v. Marsiglia, 1 Den. 317.

The judgment of the General Term should be affirmed. All

concur.

Judgment affirmed.

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must be by ascertained person, Appropriation of chattel to buyer is

62-71.

must be communicated, 9, 21–29.
must be in manner prescribed by
offeror, 38-41.

must be unconditional, 74-75.
of continuing offer, 50-54.

of guaranty, 29 n.

offer may be revoked before, 49-50.
retention of goods as, 24-25.
Accord and satisfaction, 442, 529,
627-631.

Acknowledgment of right of action
after barred by statute of limita-
tions, 635-638.

Act of God, 643, 651.

Acts, offer by, 10-14.

Adequacy of consideration, 138-199,
213.

Administrator,

assignment of fees of, 452 n.

of joint promisor not to be joined
in action, 496.
performance by, 479–485.

special promise under statute of
frauds, 111-113.

delivery, 130.

Arbitration, when agreement for

illegal, 351-353.

Architect's certificate, as condition
precedent, 542-543.

Arrest, impossibility of performance
by, 647-649.
Assignment, 438-485.

by act of parties, 438-467.
by death, 479-485, 553.
by marriage, 478-479.

by operation of law, 441, 468-
485.

by statute, 459–460.

conflicting assignees, 458 n.
in equity, 446 n., 452-458.
notice to debtor, 457-458.
of executor's fees, 452 n.
of future interests, 452-456.
of insurance, 452.

of insurance policy, 333-337.
of interest in lands, 468-478.
of lease, 440.

of liabilities, 438-441.
of officer's salary, 452 n.

703

Assignment-continued.

of partnership liabilities, 420-421,
435 n., 440.

of parts of entire contract, 456.
of pension, 452 n.

of rights, 371, 442-467.

of rights at common law, 442-452.
of salaries of public officers, 347 n.
when assignee cannot sue in his
own name, 443-446, 452, 455-456.
when assignee may sue in his own
name, 459-460.

Attestation, deed established by at-

testing witness, 501 n.

Breach of contract-continued.

by renunciation before performance
due, 358, 555-559, 574 n.
by renunciation in course of per-
formance, 561-574.
inducing as tort, 416-419.
interest payable as damages after,
76.

of entire contract, 563.

of divisible contracts, 581–594.
of contract of marriage, 357-359,
485 n.

remedies, 611-638, 644, 658 n.
see also Condition, Warranty.

Attorney, infant's, appointment of, Breach of statute, contracts in, 315-

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no bar to action for breach of Check, payment by, 34-35.
warranty of title, 669–673.

Child, see Infant, Parent and child.

revival of agreement barred by, Choses in action, see Assignability,
208-210, 211.

Negotiable instrument.

Benefit, contract for third party's, Circulars of information and offer

420-437.

Bets, see Wagers.

Bill of exchange, character of, 464.
see also Negotiable instrument.
Bill of lading, negotiability of, 460-
467.

Blackstone, criticism of his classifica-
tion of contracts, 1.

Bond,

effect of illegality on, 395-398.
joint and several, 492-494, 496.
Breach of contract, 555-638.
by creating impossibility before
performance due, 560-561.
by creating impossibility during
performance, 574, 575.

distinguished, 67–71.

Citizenship of parties, see Political
status, Expatriation.

Civil law,

revocation of offer in, 57.

rule as to impossibility of perform-
ance, 652.

rule as to obligation of successor
after death, 482.

Classification of contracts, 1, 2.
Cohabitation,

as consideration, 357-359.
bond given for, 395–398.
Collateral promises, see Warranty.
Commercial agency, misrepresenta-
tion to, 280-282.

by failure of performance, 576-611. Common carriers, see Tickets.

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