134 N.Y.S. 630 | N.Y. Sup. Ct. | 1911
This action has to do "with paving Campbell avenue in the city of Schenectady. On the 13th day of February/ 1911, a petition of property owners was presented to the common council asking that Campbell avenue between the end of the present pavement near Cherry street and Seventeenth street 'be paved with bitulithic pavement, to be constructed according to the patentee’s specifications, or with the best quality of sheet asphalt. On March 13, 1911, there was presented to the common council a petition of property owners for the paving of Campbell avenue • from the end of the present pavement near Cherry street to the city line, which is some 900 feet beyond Seventeenth street, with sheet asphalt. This petition does not mention the bitulithic pavement. Upon- these two petitions an ordinance was adopted for the paving of Campbell avenue from the end of the present pavement near Cherry street to the city line with sheet asphalt or bitulithic. The board adopted specifications for the sheet asphalt, prepared by'the city engineer, and for the bitulithic pavement, prepared by Warren Brothers Company and submitted 'by the city engineer. The proper advertisements- were had and bids were submitted. There were several bids for the sheet asphalt pavement contract and one bid for the bitulithic, namely, that of Warren Brothers 'Company. After the bids were opened, no petition, sufficient under the provisions of the charter, was presented requesting the board to contract
It is necessary, therefore, that Warren Brothers 'Company be made a party to this action. The portion of this memorandum directed to the merits of the case is inserted only for the purpose of showing that the interests of the Warren Brothers Company are in jeopardy; and, when it has been made a party, the controversy must be heard without prejudice on account of anything herein stated as to the rights of the parties.
The plaintiff is, therefore, ordered to take the proper ‘ proceedings to bring in the Warren Brothers Company, as a party defendant.
Ordered accordingly.