| N.Y. App. Div. | Jan 15, 1926
Judgment modified by striking out the paragraph denying the injunction prayed for and inserting in place thereof a clause permanently restraining the defendant city of Buffalo, its officers and agents, from making any other or further payment or payments to the defendant Shaddock under the contract in question, and as so modified the judgment is affirmed, with costs to plaintiff, appellant, in this court and at the Special Term. The fourth conclusion of law is disapproved. All concur, except Davis, J., who dissents and votes for reversal on the law and for dismissal of the complaint on the ground that there was but one contract with separate items upon which the bidders were requested to give separate and independent prices in their bids, and the failure of the defendant Shaddock to give such separate prices constituted only an irregularity and not an illegality and that the council had the right to waive such irregularity and award the contract to the lowest responsible bidder, in their discretion. Present — Hubbs, P. J., Clark, Davis, Sears and Crouch, JJ.