144 N.Y.S. 70 | N.Y. App. Div. | 1913
This action is brought to enjoin the letting of a certain contract for highway repair on the ground that the proposals for bids contained specifications which were in violation of section 25 of the Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30), as added by section 14 of chapter 80 of the Laws of 1913. That section reads as follows:
“ Patented material or articles. In the construction, maintenance or repair of State or county highways, no patented*639 material or article or any other material or article shall be specified, contracted for or purchased, except under such circumstances that there can be fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the Commissioner of Highways.”
The contention of the plaintiff is that in the specifications for the contract which is sought to be enjoined was included the description of an asphaltum which precluded any opportunity for competition and was procurable only from the Barber Asphalt Company, a subsidiary of the General Asphalt Company. The plaintiff is the producer of a liquid asphalt which from the papers would appear to answer all the tests prescribed in the specifications, except that the specifications call for a solid asphalt, which is produced only by the single company, the General Asphalt Company and its subsidiaries. From the affidavits it would appear that this solid asphalt is nothing else than the liquid asphalt which has been many years exposed, so that many of the oils have been evaporated therefrom and which requires the addition of further oils in order to be brought back into a state in which it can be used for the purposes of a highway, while the liquid asphalt not having been exposed has retained within itself these oils which make it adaptable for the purposes of a highway without such treatment. These facts seem to be supported by the moving papers and were not questioned by the Special Term. The denial of the injunction was put upon two grounds: First, that a public work should not be interfered with; secondly, that the plaintiff had not sufficient interest to authorize an action upon its part for an injunction. The first ground, as thus stated, would seem to be obviated by the advance of the season, so that the roads cannot in any event be repaired for many months. The sole question, then, for our determination is whether the plaintiff has a sufficient special interest to authorize an action upon its part enjoining the Highway Commissioner from letting these contracts.
Whatever may have been the theory upon which this action was originally started it is now admitted by the plaintiff’s counsel that it cannot be maintained purely as a taxpayer’s action; that a taxpayer’s action lies only as against municipal
The order should be reversed, with ten dollars costs and disbursements, and motion granted.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs. Order to be settled on notice before Smith, P. J.