197 A.D. 5 | N.Y. App. Div. | 1921
On the 30th day of December, 1918, the board of estimate and apportionment created and made a general appropriation of $5,575,000 for the construction of fireproof school buildings by the adoption of a resolution authorizing the issuance of bonds therefor and appropriating the proceeds of the bonds thereto, and in like manner provided for an appropriation of $2,062,500 for heating, ventilating, plumbing, sanitary appliances and an electrical plant and equipment for the buildings and $412,000 for furniture and school equipment therefor. The resolution provided that the amounts to be expended therefrom were “ to be sub-authorized from these appropriations by the Board of Estimate and Apportionment predicated upon requisition from the Board of Education for stated amounts to cover the cost of constructing, etc., the foregoing school buildings,” and further provided that no incumbrance by contract or otherwise should “ be made against these authorizations ” and that bids upon contemplated contracts should not be advertised for until after the approval of the board of estimate and apportionment of- the plans, specifications and estimated costs and form of proposed contracts for the improvements. It is stated in the points submitted by the corporation counsel that this appropriation was authorized by the board of aldermen and that such authorization was essential to its validity. That argument is doubtless based on section 47 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1916, chap. 615), but section 169 of the charter (as amd. by Laws of 1916, chap. 615)
The authorities on which the relator reliés hold that there must be sufficient appropriation at the time the bids are received in. order to warrant the letting of a contract. (Williams v. City of New York, 118 App. Div. 756; affd., 192 N. Y. 541; followed, People ex rel. Carlin Const. Co. v. Prendergast, 220 id. 725; Clarke Co. v. Board of Education, 156 App. Div. 842; affd., 215 N. Y. 646; Klinck v. Pounds, 163 N. Y. Supp. 1008.) Here, however, the appropriation was sufficient but the estimated cost was too low and the consent of the board of estimate and apportionment was required, not to increase the appropriation, but to increase the estimated cost which limited the amount the defendant was authorized to use out of the appropriation without further .action by the board of estimate and apportionment.
Williams v. City of New York (supra) is plainly distinguishable from the case at bar on the ground that there the lowest bid when received exceeded the appropriation available for the work, and in order to create a sufficient appropriation to cover the lowest bid, it became necessary for the board of estimate and apportionment and the board of aldermen to authorize the issuance of corporate stock, thus creating an
I am also of opinion that Clarke Co. v. Board of Education (supra) is not in point for there the appropriation was not a general appropriation, but in and by the appropriation a specified amount was appropriated for the construction of specified school buildings, which made the appropriation precisely the same as if the only appropriation was for the particular school building with respect to the construction of which the point arose. That, also, was an action by a contractor fdr the recovery of prospective profits on the theory that it was entitled to have the contract awarded on its bid. In that case the board of education had requested a general . appropriation of a lump sum for the erection, equipment and improvement of school buildings and premises but the appro
Clarke, P. J., Dowling, Merrell and Greenbaum, JJ., concur. •
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.
Since amd. by Laws of 1920, chaps. 589, 960.—[Rep.