132 N.Y.S. 220 | N.Y. App. Div. | 1911
The plaintiff appeals from an order denying its motion for an injunction pendente lite. This is a taxpayer’s action brought under. the authority of section 51 of the General Municipal Law (Consol. Laws, chap. 21; Laws of 1909, chap. 29), for
The sole theory on which this action is based is that the several agreements which are sought to be restrained and nullified, and the acts of the public officers by whom they are claimed.to have been sanctioned are illegal, for the reasons that will presently be discussed.
There is no accusation that any defendant has been guilty of fraud or bad faith. The two matters sought to be restrained by injunction are entirely, independent of each other. The Bradley contracts are only for the construction of subways to be used for the purposes of a rapid transit railroad. The other contract, when made, will be for the operation of. a railroad in the subways thus to be constructed. It is conceded that it is entirely legal and competent for the public authorities to separately contract for construction and operation and no complaint is made on that score.
As to the proposed contract for operation.
The action proceeds upon the theory that the terms of the tíontract for operation have been finally determined upon, and that nothing remains but to prepare and execute a contract. It appears from the papers before us that early in the present year the general subject of a contract for a new rapid transit route or routes was taken up and considered by a joint committee consisting of the members of the Public Service Commission and certain members of the board of estimate and apportion
As to the contract for construction.
That portion of . the proposed subway system which is to occupy Lexington avenue was divided into sixteen, sections, for all of which bids were invited and received. These bids were made upon what is known as the unit basis, that is to say, instead of bidding a single price for the work as a whole, the classes of work were divided and subdivided into a great number of units, for each of which a separate bid was made. These bids were based upon construction contracts exhibited to the bidders which embraced (a) the contract proper setting forth the agreement between the parties, (b) the specifications setting forth the way in which the work was to be done .and the nature of the materials to be used, and (c) the plans or contract drawings. Four of these contracts have been let to. the Bradley Contracting Company, and are now in the course of execution. It is these that plaintiff seeks to enjoin. It is not necessary to ..dwell at length on all the grounds upon which an injunction is sought, for none of them are in our opinion sufficient to justify the issuance of an inj unction pendente lite, and the halting of the work until a trial can be had. One of the objections is that, after the advertisement for bids and before the letting of the contracts to the defendant Bradley Contracting Company, the Public Service Commission decided that it would thereafter alter the plans by slightly modifying the size of the conduit. • Hence, as it is claimed, the committee let a different contract from that for which it had invited bids. Both the act under which the Commission proceeded and the
Concerning the objection that the construction contracts required the separate and independent approval of the mayor, we are of opinion that contracts for construction only do not require to be thus approved. (See Greater N. Y. Charter [Laws of 1901, chap. 466], §§74, 242, as amd. by Laws of 1905, chap. 629; Id. §74, as amd. by Laws of 1905, chap. 630; Rapid Transit Act [Laws of 1891, chap. 4], § 5, as amd. by Laws of 1905, chap. 631, and Laws of 1909, chap. 498.) The making of a contract by the city of New York merely for the construction of a subway, sewer or other sub-surface structure which is- to be and remain the property of the city does not grant to the contractor a franchise or right to use the street within the meaning of the statutory provisions requiring in certain cases the separate and independent approval of the mayor. Whether such approval would be requisite to a contract for operation is a different question which is not presented on this appeal and which we do not consider. The defendant Bradley Contracting Company objects that the city of New York, which is contracting party with it, is not a party to the action, and urges with much force that no action should be taken holding the contracts to be invalid unless both parties to the contract are before the court, so that both shall be bound by the judgment or order to be entered. This objection is not without weight, but the con
The order appealed from is affirmed, with ten dollars costs and disbursements.
Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.