Kay v. Monroe — 95 N.Y.S. 1138

Majority

p. 1138

KAY, Respondent, v. MONROE, Com’r, et al., Appellants.

(Supreme Court, Appellate Division, Second Department.

November 24, 1905.)

Headnote

Appeal from Special Term, Kings County. Action by Joseph W. Kay against Robert G. Monroe, as commissioner of water supply and electricity of the city of New York, and others. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

James D. Bell and Frederick St. John (Augustin Ledwith, on the brief), for appellants.

Walter Thorn, for respondents.

I am of opinion that our decision upon the appeal from the order granting the plaintiff’s motion for an injunction pendente lite determines this appeal from the judgment. In the opinion written for the court by Hirschberg, P. J„ 93 App. Div. 484 , 87 N. Y. Supp. 831 , the conclusion was reached that the papers before the court at Special Term tended to establish that the commissioner so limited the bids for the larger number of meters as practically to exclude competition. The same “papers” were read in evidence at the trial, and were supplemented only by testimony which the plaintiff offered to show that the meters called for in the bids were patented' articles, while the defendant offered no evidence. I may add that I fail to find proof of compliance with the requirement of section 1554 of the Greater New York Charter (Laws 1901, p. 642, c. 466) that conditions to secure fair and reasonable opportunity for competition “must be” prescribed by the- board of estimate and apportionment. The learned counsel for the corporation writes in his points that such proof is found in Exhibit D. But, unless I mistake it, that is but an affidavit in which the affiant deposes that he is the secretary of the board of estimate and apportionment, and as such has in his custody certain records of the transactions of the former

p. 1139

board of public improvements, and thereupon he makes an ’extract from the minutes of that board. Judgment must be affirmed, with costs.