201 A.D. 298 | N.Y. App. Div. | 1922
The former commissioner of street cleaning of the city of New York, John P. Leo, duly advertised for proposals to be submitted on the 9th of June, 1921, for unloading scows containing mixed ashes, street sweepings and rubbish, for one year commencing on the 1st day of July, 1921. The plaintiff duly presented a proposal, and, as it was the lowest bidder, the contract was finally awarded to it and was signed by both parties and became effective by the execution of the certificate by the comptroller on the 2d day of July, 1921. Rikers Island in the East river is owned by the city. The northerly half of the island has been filled in and is occupied by the city. The southerly half is surrounded by a bulkhead behind which is considerable low land which the city has been filling in with ashes and other refuse for a long time. It appears that for many years prior to 1919 the only contractor employed by the city to unload such scows was the firm of Dailey & Ivins. That firm built at the bulkhead line of the island two docks known as plants No. 4 and No. 5, and dredged channels thereto for the passage of tugs and scows, and erected derricks on the docks for unloading the scows, and constructed railroad tracks into the interior of the southerly end of the island, and equipped the same with locomotives and dump cars for distributing the material. The firm failed in January, 1919, and in March, 1919, the defendant Rodgers & Hagerty, Inc., which will be referred to as Rodgers & Hagerty,
Under the advertisement for proposals, pursuant to which the contract was made with the plaintiff, bidders were unrestricted with respect to the location of their plant or plants for unloading the scows, and were expressly permitted to bid “ upon placing one or more unloading plants on Riker’s Island, East River, at locations to be approved by the Commissioner; ” and in that event the contractor was required at his own cost and expense promptly to remove the plants and all supplies and materials, used thereat from the island at the termination of the contract. Bidders were informed by the advertisement for proposals with respect to the minimum number of scows to be unloaded daily during each month. The smallest number was seven in August, and the largest twenty in January, February and March. It was stated in the advertisement that these numbers were approximate only and were not guaranteed for the reason that the output varied from time to time. The city reserved the right generally to approve or disapprove of the location of plants. Bids were permitted for unloading one or more scows, and the commissioner reserved the right to allot a minimum number of scows daily to the successful bidder, and to require the successful bidder to unload such additional number of scows as the commissioner might see fit to require from time to time, not exceeding the number specified in the bid for any plant. A printed form for proposals was prepared by the commissioner, and it was used by bidders. It contained a blank for filling in the number of scows to be unloaded daily, the price per scow and the location of the plant. The plaintiff filled in this blank to show that it would unload all of the scows at $219 per scow, and gave as the location of its plant Rikers Island. The city having thus offered bidders the use of Rikers Island as a dumping ground, and having required that the successful bidder should begin unloading on the first of July, twenty-one days after the bids were received, regardless of the time during that period when the contract might be actually let, bidders were warranted in assuming that the successful bidder would be entitled to use the docks owned by the city on the island and the channels connecting the same with deep water, for it appears that it would have taken upwards of two months to dredge another channel and build another dock; and, as was to be expected, the plaintiff before submitting a proposal had examined and become familiar with the former contract with Rodgers & Hagerty which obligated the contractor to
The moving papers further show that the plaintiff, if it had been permitted to use any of the city’s docks, could have installed its plant, including derricks and cars, within forty-eight hours, and could have been ready to unload scows within that time; that on the morning of July first the plaintiff’s president, superintendent and a gang of men with a boatload of machinery went to the island with a view to landing at the dock at plant No. 3, and found that the landing space had been blocked by Rodgers & Hagerty; and that their tracks near the plant, which had been empty the day before, were filled with cars and locomotives; and that at about ten a. m. Eschmann appeared and notified them that the commissioner would not permit the plaintiff to interfere with the work of Rodgers & Hagerty and would not allow it to land any material at the dock or to lay any tracks, and that the commissioner had arranged with Rodgers & Hagerty to continue the work, and had given him orders to call the police if plaintiff landed any material or interfered with the work of Rodgers & Hagerty; that later the police appeared and stopped plaintiff’s employees from attempting to work at that plant; that on July second the plaintiff, having been unable to obtain any more favorable consideration from the commissioner, accepted the site approved by him in his said letter of June twenty-ninth, and on that day began the work of building a dock and dredging a channel at that point and erecting a plant, and, with the exception of laying the tracks, had substantially completed it by August; that the plaintiff was delayed in obtaining permission of the commissioner to cross the tracks of Rodgers & Hagerty, and was ultimately obliged to institute an action against the commissioner, and this resulted in its being allowed to lay its tracks, and it commenced to unload scows at that point on the seventh of November, but was unable to handle more than three daily at that location.
“ In order to deny one the relief which a court of equity can give, it is not in all cases sufficient that there be a remedy at law. The remedy must be plain and adequate, and as certain, prompt,
Furthermore, if these views are correct with respect to the rights of the plaintiff, it follows that the commissioner is not warranted in continuing the emergency contracts, for in that manner the statute requiring that such work be done by contract after receiving sealed proposals would be violated; and public officials should be required to perform their statutory duties, and should not be permitted to subject the taxpayer to the payment of damages for their failure properly to discharge their duties.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, to the extent of enjoining the defendants and their agents and servants from in any way obstructing or interfering with plaintiff in the performance of a certain contract, dated on or about June 28, 1921, made between plaintiff and the city of New York by and through its commissioner of street cleaning, for unloading deck scows containing mixed ashes, street sweepings and rubbish at Hikers Island, New York city, and disposing of their contents, and from obstructing or interfering with plaintiff in the use of its plant erected on said Hikers Island and in laying its tracks therefrom, and in removing the tracks, plant and equipment of defendant Rodgers & Hagerty, Inc., in the vicinity thereof, and in doing any and all other things necessary to the expeditious and unhampered performance of its said contract and from preventing use by plaintiff of the docks now on Hikers Island .and the channels forming approaches thereto and from preventing the removal by plaintiff of the plants, tracks and equipment of defendant Rodgers & Hagerty, Inc., therefrom, in the event of its failure forthwith to remove the same itself, and that defendant Alfred A. Taylor, commissioner of street cleaning, be enjoined and restrained from awarding any of said work given plaintiff under its contract with the city of New York to the defendant Rodgers & Hagerty, Inc.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent stated in the opinion. Settle order on notice.
See Laws of 1901, chap. 466, as amd. by Laws of 1917, chap. 401.— [Rep.