Van Iderstine v. Department of Health — 122 N.Y.S. 468

Majority

p. 468

(65 Misc. Rep. 608.)

VAN IDERSTINE v. DEPARTMENT OF HEALTH OF CITY OF NEW YORK.

(Supreme Court, Special Term, New York County.

January, 1910.)

Headnote

Health (§ 16^[1] )—Board of Health—Contracts.

Under New York City Charter (Laws 1901, c. 466) §§ 1205, 1206, the board of health is vested with discretion in awarding contracts for the removal of refuse, which is not' controlled by section 419.

[Ed. Note.—For other cases, see Health, Dec. Dig. § 16.^[1] ]

Action by Charles A. Van Iderstine against the Department of Health of the City of New York. On motion for injunction.

Denied.

Breed, Abbott & Morgan (Julius M. Mayer, of counsel), for plaintiff.

Francis Martin, Asst. Corp. Counsel, for defendant.

It.is apparent from the reading of sections 1805 and 1806 of the charter (Laws 1901, c. 466) that the board of health is vested with discretion in the awarding of contracts -for the removal of refuse, which is not controlled by the provisions of section 419; and, as was said by Mr. Justice Leventritt in the case of Pocher v. Board of Health, found in the Law Journal of March 7, 1905, these sections are not merely emergency sections, but they are most general in their terms, and, if in conflict with section 419, would have to be given controlling force, if for no other reason than that by their position in the charter they are to be taken as later enactments. As Mr. Justice Leventritt further says, the power vested being discretionary, the court has no right to interfere, except under exceptional circumstances. There is no evidence before me in this proceeding that would warrant this court in holding that there was any fraud or deception. Therefore the motion is denied.

Motion denied.