Kay v. Monroe — 93 A.D. 484

Majority

p. 484

Joseph W. Kay, Respondent, v. Robert Grier Monroe, as Commissioner of Water Supply, Gas and Electricity of the City of New York, and Others, Appellants.

Headnote

Patented article — action of New York city in inviting proposals therefor — when ‘‘a fair and reasonable opportunity for competition ” is not afforded— injunction by a taxpayer.

The action of the authorities of the city of New York, when inviting bids for the furnishing of water meters for the use of that city, in limiting them to a certain type and size of meter in such a manner as to call for bids only upon a patented meter, under conditions calculated to practically exclude competition, constitutes a violation of section 1554 of the revised New York charter (Laws of 1901, chap. 466), which provides that “no patented article shall be advertised for, contracted for or purchased, except under such circumstances that there can be a fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the board of estimate and apportionment.” A taxpayer, who brings an action to restrain the city authorities from carrying out a contract entered into pursuant to such bids, is entitled to an injunction pendente lite.

Appeal by the defendants, Robert Grier Monroe, as commismissioner of water supply, gas and electricity o£ the city of New York, and others, from an order of the Supreme Court,'made at the Kings County Special Term and entered in the office of the clerk of the county of Kings oh the 15th day of December, 1903, granting the plaintiff’s motion for an injunction pendente lite.

Frederick St. John [T. Augustin Ledwith with him on the brief], for the appellants.

Joseph A. Burr, for the respondent.

The plaintiff, a taxpayer of the city of New York, seeks in this action to restrain the defendants other than the comptroller from carrying out a contract for the supply of water meters for the use of the city, and to restrain the defendant Edward M. Grout, as comptroller of said city, from certifying such contract. By the order appealed from a temporary injunction of the character indicated is continued during the pendency of the action. '

p. 485

The papers before the court at Special Term tend to ■ establish that in inviting bids for the furnishing of meters the defendant the commissioner of water supply, gas and electricity limited the bids with respect to the larger number of the meters advertised for to a certain type and size in such manner as to call for bids only upon a patented article under conditions which were calculated to practically exclude competition. Section 1554 of the revised New York charter (Laws of 1901, chap. 466), provides that “ no patented article shall be advertised for, contracted for or purchased, except under such circumstances that there can be a fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the board of estimate and apportionment.” In construing this section of the revised charter in Rose v. Low ( 85 App. Div. 461 ) the Appellate Division in the first department recently held in substance that the intention of the provision was to prevent the purchase of a patented article except under conditions which would allow competition.' In that case the proposed contract related to the paving of one of the city streets with a patented pavement, but the reasoning applies equally to the purchase of a patented article generally. The court said (p. 466): “ We think what was intended was, that there should thereafter be no patented pavement laid, and no purchase of a patented arUcle, except under conditions which would allow competition. That competition could not be a competition to supply the patented pavement or articles, because the manufacturers thereof have a monopoly of them by reason of. their patents. If, however, a certain result was to be arrived at, namely, a smooth pavement to be laid, then there could be advertisement for a smooth pavement which would comply with the requirements deemed proper by the local authorities having charge of the particular street to be paved, and the owner of the patented pavement could compete with others who furnished a pavement which complied with the same requirements; and in that way the patentees of a pavement could enter into competition with others who would lay the same character of-pavement, and conditions could thus be created where there could be a fair and reasonable opportunity for competition." * * * But when the conditions imposed by the board of estimate and apportionment are such that .the only person who could lay the pavement is the patentee, it is apparent that the mandatory

p. 486

provisions of the statute havé not been observed, and that' the municipal authorities are prohibited from laying a pavement contracted for under such conditions.”

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.-

Cases cited

Rose v. Low 85 App. Div. 461 N.Y. App. Div. 1903-07-07 p. 485