17 N.Y. St. Rep. 743 | New York Court of Common Pleas | 1888
(after stating the fads as above.) Had the defendants ■been acting in their own private business, there is no doubt that they could have-permitted the offer made by the Electric Construction Company to be withdrawn, but, acting as public officers, they could not lawfully forego the-right that the city had acquired to insist that the company should either carry out its offer or forfeit the amount that it had deposited as security. When the bid of the Electric Company, with the certified check that accompanied it, passed into the hands of the commissioner of public works, the statute prescribed the disposition that should be made of the one and the other. The bid was to be publicly opened by the officers, who are the defendants in this action, arid the contract was to be awarded to the lowest bidder. If the lowest bidder should refuse to execute, that is to say, sign the contract within five days after notice that it had been awarded to him, the amount of the certified check that he had deposited as security was to be forfeited, and retained by the city as liquidated damages, and paid into the sinking fund. No other disposition of tlie bid and the check was lawful. It has been decided that where the statute requires a public officer to award a contract for public work to-the lowest bidder, he may be restrained by injunction from giving it to any ■one else, (2 High, Inj. §§ 1251, 1252,) and principle requires that the highest ■ bidder should not be made the lowest bidder by the withdrawal of the lower bids. ' It matters not how honestly the officials acted, (and no one questions the absolute integrity of the distinguished gentlemen who are the defendants,) their consent to the withdrawal of the bid was in conflict with the statute.
Now, who has the right to complain of their action? The act of 1887 (chapter 673) provides that an action to prevent any illegal act on the part of any Officers of a municipal corporation may be brought by any person whose assessment shall amount to a thousand dollars, and who shall be liable to pay • taxes on such, assessment to such municipal corporation. The object of the action is “to prevent waste or injury to the property, funds, or estate of such municipal corporation.” The plaintiff alleges in his complaint that he possesses the qualifications mentioned in the statute, and there is nothing before me to cast doubt upon his- allegation. But in all applications of this character it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use •of,the power of the court to accomplish some private end. This is a familiar -rule, and it was applied by Judge Van Bbunt in Hull v. Ely, 2 Abb. N. C. 440, a case that strongly resembles this. There Mr. Hull, as a tax-payer, brought an action against Mr. Ely, to prevent waste of the city’s property through a sale of certain ferry franchises in a manner that caused a loss to-the city treasury; but Judge Van Bbunt denied an injunction, because, to use his own language, “it is apparent from the circumstances surrounding this case that the plaintiff has not commenced this action to protect his interests as a tax-payer, but that the real parties in interest are the persons now usiifg the ferry franchises, and consequently he has no right to call upon the court for the exercise of its equity powers.” I find in the papers before me much that casts suspicion upon the bona fides of the present action. In saying this, Í feel it my duty to add that I do not mean to impute a bad motive to the plaintiff’s attorney, who has been retained, I suppose, because his good ■name lends respectability to any cause of which he is the advocate. The facts stated in the complaint constitute a good cause of action, and, if the plaintiff were-really seeking redress, would warrant the granting of an injunction; but, as I have said, it is my duty to know that the plaintiff is honestly protecting his interests as a tax-payer, and that he is not resorting to this action