86 N.Y.S. 69 | N.Y. App. Div. | 1904
Lead Opinion
This is a taxpayer’s action to enjoin an alleged illegal award of a contract for furnishing and setting new curbstones and paving with a patented pavement known as “ Warren Brothers Bituminous Macadam Waterproof Pavement ” the carriageway of Seventy-second street, between Central Park West and Riverside Park in the
“ Method A. Pavement of asphalt blocks three inches in thickness, with a base of Portland cement concrete and mortar three inches in thickness. .
“Method B. Pavement of sheet asphalt two inches in .thickness, with a bituminous concrete binder one inch and a Portland cement concrete base three inches in thickness.
“ Method C. The Warren Patent Bitulithic Pavement two inches in thickness, with a base of bituminous concrete four inches in thickness.”
It is conceded that said “ Method C ” relates exclusively to a patented pavement which the Warren Brothers have the exclusive right to lay, and that , with-respect thereto no one can compete with them or their licensees. The plaintiff alleges, and it is not denied, that the defendants intend to accept the proposal for the patented pavement and to award the contract accordingly. The plaintiff cobtends that such an award of the contract will be in viblation of the provisions of section 1554 of the revised charter (Laws of 1901, chap. 466), which provides as follows:
“ Except for repairs, no patented pavement shall be laid and no patented article shall be advertised for, contracted for or purchased, •except under such circumstances that there can be á fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the board of estimate and apportionment.” The defendants on the other hand claim that the board of estimate and apportionment has prescribed conditions affording a fair and reasonable opportunity for competition and that these conditions are embodied in the specifications. The conditions prescribed which it is claimed admit of such competition are the three methods, A, B, C, already quoted, together with particular specifications with reference to the pavement to be laid under each of the methods respectively. It is further contended on the part of the respondents that ;these conditions conform to the views expressed by ..this
The provisions of the revised charter prescribing the definiteness with which plans and specifications for public work shall be prepared have not been drawn to our attention nor have I examined them, but I assume from the provisions of section 1554 that they do not require the preparation of plans and specifications with such definiteness and precision as to prevent competition for a patented pavement. If not, then I see no reason why specifications of a general nature may not be prepared along the lines I have indicated or on similar lines, leaving each bidder to present his particular process or formula for preparing and laying the different parts of the pavement, or to file his particular specifications, that will conform to the general specifications prescribed by the city authorities, and in his proposal refer to those thus filed by him. This is the view I entertained when I examined the question on the appeal in the Rose case and it is the view I understand to be expressed in the opinion rendered on that appeal. The specifications in question do not conform to these views. The different parts of the different pavement called for differences in thickness and in the"nature of the material,, aside from the question of patents, and, for these reasons, there would be no standard of comparison between the different proposals,
For these reasons I am of opinion that the order should be reversed, with ten dollars costs and disbursements, and motion for injunction granted, with ten dollars costs.
Van Brunt, P. J., and Patterson, J., concurred; O’Brien, J., concurred in result; McLaughlin, J., dissented.
Dissenting Opinion
I dissent upon the "ground that the question has been decided otherwise by this court. (Rose v. Low, 85 App. Div. 461.)
Order reversed, with ten dollars costs and disbursements, and motion for injunction granted, with ten dollars costs.