(77 Hun, 44.)

#### BURGER v. ROELSCH et al.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Contracts—Validity—Building Regulations.

A contract to build a house in violation of the building regulations of at city is unlawful, and no action will lie for its breach.

Action by Eobert E. Burger against William D, Eoelsch and Elizabeth Eoelsch for breach of contract. Defendants' motion for a new trial was ordered to be heard in the first instance at general term, after a verdict directed in favor of plaintiff at the Erie circuit.. Granted.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BEADLEY, JJ.

George M. Osgoodby, for plaintiff.

Frank R. Perkins, for defendants.

LEWIS, J.

The parties entered into' a written contract on the-18th day of June, 1892, by the terms of which the plaintiff agreed to provide the materials and construct for the defendants a three-story brick building on Chenango street, in the city of Buffalo, for-*461the consideration of $9,800, according to certain plans and specifications furnished by the defendant, and forming part of the contract. The lot upon which the building was to be located was 30 feet front • and rear, and 92 feet in depth. The plans located the front of the proposed building upon the line of Chenango street, and called for bay windows upon the front of the building, projecting 2 feet into the street. The building was to be 28 feet wide upon Chenango street, and the entire width of the lot in the rear and 72 feet long. The contract provided that the outside brick walls of the first story should be 12 inches, only, in thickness. An ordinance of the city • of Buffalo in force at the time of making this contract, and still in force, provided that the external walls of the first story of three-story brick buildings constructed in the city should be of the minimum thickness. of 16 inches. The ordinances further provided that every building erected contrary to the provisions of the ordinances of the city shall be deemed to be a common nuisance, and the superintendent of buildings may order the same removed; and, in case the owner shall neglect or refuse to remove such building within five days after notice so to do, the board of public works may remove it at the expense of the owner. The charter of the -city provided that:

Before the construction * * * of any building in the city is commenced, the owner shall file with superintendent of buildings a sworn statement of the character and use of the building he proposes to erect, and its location ■on his premises, * * * with a copy of the plans and specifications of such building, which statement shall contain' the name and residence of the owner, and the purposes for which the building is designed. The superintendent shall, within ten days after the filing of the plans, specifications and statement, approve the same or indicate in writing the alterations to be made therein, to make them comply with the general laws of the state and ordinances of the city. But no building shall be erected or remodeled until the approval of the superintendent shall be obtained and a written permit issued by him to the owner or builder of such building.

The defendants presented their plans and specifications! to the ■superintendent for the purpose of obtaining the required permit. He refused his consent for the reasons—First, that the plans contemplated that the brick walls of the first story of the building were to be only of the thickness of 12 inches; second, that the bay windows would encroach upon the street. And various other •objections, to the plans were made by the superintendent. Defendant thereupon informed the plaintiff of the obstacles to the erection of the building, and the plaintiff suggested that changes be made in the plans and specifications, so that they would conform to the ordinances of the city. The defendants declined so to do, because of the additional expense, and for the reason that the increase of the thickness of the walls would make the stores, to which the first story was, to be devoted, too narrow. The plaintiff thereupon proposed to the defendants that the plan of building of brick should be abandoned, and that the building should be construct•ed of wood, to which the defendants assented, and procured plans and specifications for a wood building, and submitted ■them to the plaintiff and other builders for bids. The defendants *462thereafter let the contract to build a wood building upon the lot to another builder, whose bid was considerably lower. than that of the plaintiff. The plaintiff thereupon claimed damages of the defendants for a breach of the contract, and instituted this action. It was stipulated on the trial that the plaintiff’s damages were $350, and the court directed a verdict for the plaintiff for that amount. No exception was taken by the defendant to the direction of the verdict. At the close of the plaintiff’s evidence the ordinance prohibiting the erection of the building, with the walls of the thickness mentioned, was in evidence; and the defendants, at the close of the plaintiff’s case, moved for a nonsuit. The motion was denied, and defendants duly excepted.

It therefore appeared, at this stage of the trial, that the construction of the building according to the contract would have been in direct violation of the city ordinances. It would have been a nuisance, if constructed, which the board of public works could have abated. The ordinance absolutely prohibited the erection of the building according to the terms of the contract. The agreement was therefore unlawful. City ordinances have the force of law, and contracts in violation of them are illegal. 1 Dill. Mun. Corp. § 308, and note. A contract void for illegality is no contract. 2 Whart. Cont. § 935. Where a contract is to do a thing which cannot be performed without a violation of the law, it is void, whether the parties knew the law or not. Anson, Cont. 191. When a contract is made to do an act prohibited by statute, no action can be maintained to enforce performance, or to obtain damages for a breach thereof. Nor, if the claim be founded really upon the contract, will an action on the case for damages be supported. 1 Story, Cont. § 769. See Metc. Cont. 247-250; Broom, Com. Law, 357: Brinkman v. Eisler (City Ct. N. Y.) 7 N. Y. Supp. 193, affirmed 16 N. Y. Supp. 154.

It is claimed by the plaintiff that it was incumbent upon the defendants to so change and modify the plans and specifications that they would not conflict with the ordinances of the city. There is an absence of any evidence as to the increased expense of constructing the building with 16 instead of 12 inch walls. But, manifestly, the additional expense would have been considerable, and then the width of the stores would have been materially lessened; and we do not see, as between the parties, having equal opportunities to know, when they entered into the contract, of the existence of the ordinance making the contract illegal, that the defendants were under any obligations to make the changes in the plans and specifications suggested. Had the alterations been trivial and inexpensive, it may be that the rule would be different. A further answer to this claim is that the complaint is based upon the original contract. The contract is alleged, the breach stated, and damages are claimed on account thereof. There is no allegation that the defendants refused to make the changes suggested by plaintiff in the contract, so as to avoid the illegal features. If so changed, it would have been a new contract, involving new bids for the work. The defendants were not obliged to make a new contract *463with, plaintiff. The plaintiff occupies the position of appearing in court with an illegal contract; one that he was powerless to perform; a contract which, if he had performed, would have created a nuisance,—and is asking damages for the breach of it-We are not referred to any case holding that, when parties have made an illegal contract, either party is under an implied obligation to make a new one. If one is bound so to do, the other must be, for there must be mutuality of contract. An illegal contract cannot be made a foundation of an implied assumpsit. Gillet v. Phillips, 13 N. Y. 119. A party to an illegal contract will be released therefrom while it remains executory. Strait v. Harrow Co. (Sup.) 18 N. Y. Supp. 224; 1 Story, Cont. § 617.

It is claimed by the plaintiff that the defendants’ answer failed to raise an issue as to the illegality of the contract. The answer,, in that regard, is informal, and somewhat imperfect. It does, however, allege that the defendants presented their plans and specifications to the superintendent of buildings, and that he, by virtue of his office, and the law and ordinances, did insist and maintain that said building should not and could not, under the law and ordinances aforesaid, be erected or constructed according to said plans and specifications, and thereby prevented the erection and construction of said building under and according to said contract. Then follow allegations to the effect that the contract was abandoned by the mutual consent of the parties, and other plans adopted as stated. The prohibitory ordinance mentioned was received in evidence without the question being raised by the plaintiff as to the sufficiency of the defendants’ answer. Had the attention of the court been called to the answer, it could, if necessary, have been so amended as to obviate the objection. It is too late, upon appeal, to raise the question. But, without reference to the pleadings, when it was made to appear that it was an illegal contract plaintiff was asking to enforce, it was the duty of the court to refuse to proceed with the action further, and leave the parties where they had placed themselves. Richardson v. Buhl, 77 Mich. 661, 43 N. W. 1102. The plaintiff failed to make a case entitling him to a verdict. The defendants’ motion for a nonsuit should have been granted. The verdict should be set aside, and a new trial granted, with costs to abide the event. All concur.