Appeal by petitioner from an order of the Supreme Court made at an Ulster County Special Term and entered in Albany County which dismissed its petition for an order in the nature of mandamus. The petitioner was an unsuccessful bidder for a contract for the construction of a portion of the Hewburgh-Woodbury State Highway Ho. 42. Located upon the site designed for improvement were fourteen buildings. The specifications reserved to the State the right to the employment of any of three methods for the riddance of any or all the buildings and required the bidders to submit a lump sum bid price for getting rid of twelve of the buildings by whichever of two of the specified methods the State might adopt in accordance with its reservations, and payment for which was to be made to the contractor accordingly. These reservations were lawful, and, as regards the lowest gross sum for which the entire work entailed in the project was to be performed, petitioner’s bid was higher than that of the impleaded respondent to whom the contract has been awarded. Under subdivision 3 of section 38 of the Highway Law the gross bid which becomes decisive includes each bid item even though it may later eventuate that such item may not be called into performance by virtue of reservations duly provided for. Petitioner is seeking relief in the nature of mandamus under article 78 of the Civil Practice Act, and has shown no clear legal right therefor. Order affirmed, with $10 costs. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Deyo, J., not voting.
A. E. Ottaviano, Inc. v. Tallamy
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