Holly v. City of New York

This appeal is from an order restraining the defendants during the pendency of the action from carrying out a certain contract for laying a steel pipe line from Valley Stream to Amityville, L. I., a distance of 16 miles. The city, through its proper officers, advertised for bids for the construction of this line. The pipe was required to be 72 inches inside diameter and one of four different types, designated as “A,” “B,” “C,” and “D,” depending upon the method by which the plates were joined; the first three being forms of riveted joint, and the fourth a lock-bar joint. The contract was awarded to the appellant the T. A. Gillespie Company, the lowest bidder, upon a bid of $1,879,390 for type “D” pipe; the next lowest bidder being $1,909,052 for type “A” pipe.

This action was brought by a taxpayer, in which he seeks to procure a judgment declaring the acts of the officers of the city in advertising and receiving bids for type “D” pipe illegal and void, restraining them from accepting the bid of the T. A. Gillespie Company, and enjoining the defendants from carrying out the contract in any way. The action is based upon section 1554 of the Greater New York charter (Laws 1901, p. 642, c. 466), which provides:

“Except for repairs no patented pavement shall be laid and no patented articles 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.’’

It is urged that type “D,” or lock-bar joint, pipe is a patented article, and the conditions to secure competition in bids were not prescrib

The only remaining question necessary for consideration is whether' an opportunity was afforded for fair competition. If not, or if unjust discrimination were shown the T. A. Gillespie Company, then the plaintiff would be entitled to the relief sought. What is claimed by the plaintiff in this respect is that an excessively high estimate was placed upon the efficiency of the lock-bar joint, so that thinner plates could be used for that style of pipe, and that the thickness of the plates for that style, under the specifications, was exactly that of the plates manufactured by the East Jersey Pipe Company. The affidavits presented in opposition to the motion fairly tend to establish, however, that the estimates for the various styles of pipe were made strictly in accordance with engineering standards, which fact I do not understand is disputed.

But it is further urged in this connection that this saving in metal gave the Gillespie Company a large advantage over its competitors, so that its bid represents a mucfi greater profit and less actual value to the city. All that concerns the city is to have suitable pipe laid at the lowest possible cost, and it is difficult to see why a taxpayer should wish the lowest bid thrown out because the bidder would have a larger profit than a higher bidder.

Our attention has been called to certain cases which it is claimed hold that articles made with patented machinery fall within the prohibition of section 1554. There are, doubtless, expressions in some of the opinions delivered in the cases referred to to this effect; but the Court of Appeals seems to have finally settled the question adversely to the plaintiff’s contention, in so far as he claims that an opportunity was not afforded for fair competition. Warren Bros. Co. v. City of New York, 190 N. Y. 297 , 83 N. E. 59 . So that, granting all that the plaintiff claims, that the Gillespie Company was the only one who could bid on type “D” pipe by reason of its control of the machinery for its manufacture, I am of the opinion that the conditions of the bids were such as to afford a fair and reasonable opportunity for competition. Bids were advertised for four types of pipe on what we can only conclude were equal terms, and if it be assumed that type “D”

“The dictates of public policy, under the circumstances here presented, would seem to require that the owners should bid on equal terms. It may well be, in this age of invention and progress, that the wit of man may devise, if it has not already, a smooth and noiseless pavement that is cheaper and more enduring than any now in use. If this proves to be the fact, there is no reason why the inventor and the city should not profit by this situation.”

It- is not possible to force the holder of a patent to assign rights to others, so that they may bid against each other. That is not what is meant by bidding on equal terms, for otherwise there could be no equal terms. All that is necessary is to afford to each bidder an opportunity for fair competition, and this appears to have been done in the present case. The city officials having in charge the.letting of the contract, in the exercise of the discretion vested in them, selected the lowest bidder, and their discretion ought not to be interfered with. It is a general rule that courts will not interfere with the exercise of the discretion vested by statute in administrative officials, in the absence of clear and convincing proof of improper conduct on their part, or unless the powers conferred upon them are clearly transgressed. East River Gaslight Co. v. Donnelly, 93 N. Y. 557 ; Brady v. Mayor, 112 N. Y. 480 , 20 N. E. 390 , 2 L. R. A. 751 ; Paul v. City of New, York, 46 App. Div. 69 , 61 N. Y. Supp. 570 . And, where a contract has been awarded for a public improvement, the court will not interfere with its performance, unless its illegality is clearly established. Gage v. City of New York, 110 App. Div. 403 , 97 N. Y. Supp. 157 .

The moving papers fail to establish even a prima facie case, and for that reason the injunction should be vacated, and the city left free to carry out the contract awarded to the T. A. Gillespie Company.

The order appealed from is reversed, with $10 costs and disbursements to each appellant appearing by separate counsel, and the motion for an injunction denied, with $10 costs to the same parties. All concur.