| N.Y. App. Div. | Mar 15, 1896
This action is brought to recover the damages sustained by the plaintiff in consequence of the refusal of the defendant to execute and sign a certain contract or agreement whereby the plaintiff was to perform certain work in the construction of a sewer in Franklin avenue from Third avenue to One Hundred and Sixty-seventh street in the city of New York. The commissioner of street improvements of the twenty-third and twenty-fourth wards having advertised for bids for the construction of this sewer, the plaintiff made a bid which was received by the commissioner, and the bid of plaintiff, with others, was opened, as required by statute, on the 24th day of February, 1892, and shortly after the plaintiff received a letter from the secretary of the commissioner of street improvements, ■ dated the twenty-sixth day of February, by which the plaintiff was notified that “ Your proposal for constructing sewer in Franklin avenue from Third avenue to One Hundred and Sixty-seventh street, being the lowest, the contract for same has been awarded to you, and it will be necessary for your sureties to appear and qualify before the comptroller at his office; ” and the said commissioner transmitted the plaintiff’s bid to the comptroller of the city of New York.
The question is whether or not this action on the part of the commissioner of street improvements, of itself, created a binding contract between the city and the plaintiff, for which the city was responsible in damages if the defendant refused to make the contract. It appeared that on March third, six, days after the letter awarding the contract to the plaintiff had been sent, the commissioner notified the plaintiff by another letter that his proposal to build the sewer had been rejected on account of the irregularity of the bid; and subsequently the defendant refused to execute the contract with the plaintiff. The statute under which the commissioner of street improvements of the twenty-third and twenty-fourth wards of the city of New York was appointed (Chap. 545, Laws of 1890) regulates the powers of such commissioner. By section 1 it is provided that he shall be subject to the general provisions, powers and limitations prescribed by law relating.
The question here is whether a notice by the head of a department to the lowest bidder that his proposal is the lowest, and that the contract has been awarded to him, precludes the head of a department, before the actual execution of the contract, from rejecting all the bids under the public notice which has been duly advertised ; in other words, whether tile award of a contract bv the com
Let us look for a moment at the rights and obligations of each of ■the parties to this proposed contract immediately after this communication awarding the contract to the plaintiff was received by him. The city, by its duly authorized officer, had advertised for bids or •proposals to do certain work that the city was authorized to do. ■Annexed to that ‘ proposal was a contract which had been' settled ■by the counsel to the corporation as an act of preliminary specification to the bid or.proposal. ' The plaintiff had made a bid offering to do tile ■ work for a price named; and it is not disputed but that - he was the lowest bidder. Whether or not the contract should be awarded-to him was then to be determined by the commissioner. The statute imposed upon the.commissioner a specific duty. That was, first to determine whether or not it was for the interest of the city to reject all bids. If he determined not to reject all bids, he was theirrequired, without .the consent or approval of any other department Or officer of the city government, to award the contract to the lowest bidder. (Consol- Act, § 64.). Upon that ■award being made, the lowest bidder was bound to execute the' contract and furnish sureties'to secure the faithful performance óf the •contract, who, in addition to the justification and the acknowledgment of the bond, should,be approved by the comptroller. If the lowest -bidder neglected or refused to accept the contract within five days after written' notice that the same had been awarded to his bid or proposal, or if he accepted but did not execute the contract and give the proper security, if should be readvertised or relet as above provided. (See Consol. Act, § 64.) But, in ■ addition to that, by section 65 of the Consolidation Act, it was provided that each bidder must deposit with the department or officer inviting the bids a certified check drawn to the order of the comptroller, or money to an amount not less than three nor more than five per cent of the amount of . the bond required by such department or officer for the faithful performance of the work proposed to be done, or supplies ■ to be furnished, and that if tlie. said lowest bidder should refuse or ■ neglect within five days after due notice that the'contract had been
Thus we see a system provided by which work to be done is to be by contract to be entered into by the appropriate heads of departments to be founded on sealed bids or proposals, made in compliance with public notice duly advertised. The head of a department, unless he shall deem it to be for the best interest of the city to reject all bids, is to, without the consent or approval of any other department or officer, award the work to the lowest bidder, and when this award is made, the lowest bidder is bound to execute the contract or forfeit to the city a sum of money which he is required to deposit with the officer at the time of the submission of his bid. Upon the determination by the head of the department that it is not for the interest of the city to reject all bids, he is bound to award the contract to the lowest bidder, and when that award is made, it seems to be clearly the intention of the statute to bind both the lowest bidder and the city to sign the contract. The penalty for a violation of that obligation by the lowest bidder is fixed by the statute, namely, a forfeiting of the amount of money that the bidder was required to deposit at the time of the submission of his. bid. And as no penalty is affixed for a refusal of the city to perform its part of the contract, namely, to execute the contract that had been settled by the corporation counsel as an act of preliminary specification to the bid, we think it follows that the city was liable for the damages sustained by the lowest bidder for the refusal to execute the contract. This view, we think, is sustained by the case of The People ex rel. Lunney v. Campbell (72 N. Y. 498), where Miller, J., in delivering the opinion of the court, says: “ This position, we think, is well founded, and there appears to be no question that if the proceedings were all regular, and conducted according to law, as is asserted, and the relator has in all respects conformed to the provisions of the city charter, that he has a right of action against the city for all damages which he has sustained by reason of the refusal of the commissioner to execute and carry out the contract.” (See, also, the case of People ex rel. Dowdney v. Thompson, 99 N. Y. 641.)
Reading sections 64 and 65 of the Consolidation Act together, it seems to be clear that it was the intention of the Legislature to
The objection to the form of the verification by the proposed sureties is frivolous. They followed explicitly the directions upon the proposed bond, and as each of the sureties was both a householder and freeholder, it would have been improper to strike out either of the words. No point is made but that the sureties were amply sub ficient and would have been approved by the comptroller but for the action of the commissioner -in stating that he had rejected all the bids.
We do not think that the plaintiff, by accepting the return of his deposit, waived his right to insist upon the performance of this obligation by the city. It does not appear expressly when that money was returned to him, but the check returning it appears to have been paid February 9, 1893; that was after he had been notified by the commissioner that his bid had been rejected, and after he had written a letter to the commissioner protesting against the reletting of the work, and after the commissioner had readvej-tised the proposal for bids. The city had thus refused to perform its obligation
The only other objection urged by the defendant is an exception to certain questions that were asked the plaintiff as to the value of the rock that was to be excavated by the plaintiff, and the objection is based upon the ground that it was inadmissible as showing what plaintiff had paid for rock. But there was no such question asked the plaintiff. To qualify him to testify as to the value of the rock, he was asked whether he had purchased rock himself at the time when the contract was awarded to him; and then, after being directed to base his testimony upon the knowledge that he had acquired as to the market value of the rock, he was asked, “ What was a fair market value for this rock ? ” We do not think that this-testimony was incompetent or that there was anything that prevented the plaintiff from testifying as to what the rock' was worth..
The verdict seems to have been amply sustained by the evidence, and we think the exceptions should be overruled and judgment directed for the plaintiff upon the verdict, with costs.
Van Brunt, P. J., Williams, Patterson and O’Brien, JJ.,. concurred.
Exceptions overruled and judgment directed for the plaintiff upon the verdict, with costs.