Kimball v. Hewitt — 22 N.Y. St. Rep. 311

Majority

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Andrew J. Kimball, Pl’ff and App’lt, v. Abram S. Hewitt, as Mayor, John Newton, as Commissioner of Public Works, and Theodore W. Myers, as Comptroller of the City of New York, Def’ts and Resp’ts.^[1]

(New York Common Pleas, General Term,

Filed February 4, 1889.)

Headnote

1. Municipal corporation—Action by tax-payer—Injunction restraining ILLEGAL ACT OP OFFICER—DUTY OF COURTS—MOTIVE OF TAX PAYER

—Laws of 1887, chap. 673.

Where an action is commenced hy a tax-payer under chapter 673 of Laws of 1887, to restrain hy injunction, an alleged contemplated illegal act on the part of any officer of a municipal corporation, with a view ‘' of preventing waste or injury to the property, funds or estate of such municipal corporation,” the court will see to it that the plaintiff is actuated hy public motives, and that he is not seeking to use the power of the court to accomplish some private end.

Same—Bids for lighting city—Withdrawal of—Eight to.

Where several bids for lighting the city, having been submitted to the gas commission, pursuant to an advertisement, inviting such bids, and on the day named in the advertisement for opening the bids, and before any of the bids are opened one of the bidders asks to withdraw his bid, the court expressly decline to decide whether the commission may legally return such bid, and the check which was deposited with it.

Appeal from an order made at special term, denying a motion to continue an injunction. The order was made upon hearing of a motion to continue an injunction previously granted by the court, restraining the defendants from executing any contracts with certain electric-light -companies, or carrying out any of the awards made by the defendants on May 30, 1888, for furnishing electric-light to the city of New York, pursuant to bids opened May 9, 1888.

The plaintiff, as a tax-payer, brings the action by virtue -of chapter 673 of Laws 1887, which authorizes an action by a tax-payer to. prevent any illegal official act on the part of public officers. The defendants are constituted by law, a commission know as the gas commission, for the awarding of contracts for lighting the city, by virtue of chapter 410, § 69 of Laws of 1882, and are required under the act to award such contracts, after public advertisement on sealed proposals to the lowest bidder.

The proposal for contracts was to be advertised and let 4‘under such regulations concerning it as shall be established by ordinances of the common council.” Among

p. 312

other regulations the ordinances required that each bidder-should enclose his proposal in a sealed envelope, and before depositing it in the estimate box he should enclose in a. separate envelope a certified check to the order of the-comptroller of the city, and hand it to the clerk of the department, to the amount of five per centum of the security to ■ be required of the bidder, which check was to be forfeited to the city on the failure of the bidder to comply with the terms of his bid, if accepted.

The defendants met as a lighting commission, on May 9,. 1888, to award contracts for lighting the city with electric lights pursuant to an advertisement previously made. At that time there were found in the estimate box, when opened,, eight bids. One of these bids was from the New York Electric Construction Company, but before this last named bid was opened, John H. Hapgood, who was vice-president and treasurer of said company, requested permission of the commission to withdraw the bid of the company and the certified check deposited pursuant' to the advertisement; which request was granted, and the commission made awards to the lowest of the other seven bidders. The bid of the said New York Electric Construction Company was in fact the lowest bid. It further appeared that the said company was purely a “paper” company, and was unprovided with any plant to enable it to fulfill its proposal. It further appeared that several of the preliminary steps were taken in an action in which one William B. Lynch was the plaintiff, to accomplish the same result, and several of the affidavits in that contemplated suit appear in and are made part of the motion papers in • the action at bar. Among these affidavits is one by the said John H. Hapgood, the vice-president of the said company.

L. Laflin Kellogg, for app’lt; Henry R. Beekman and David J. Dean, for resp’ts.

—On the 30th day of May, 1888, the defendants awarded contracts to certain electric light companies-for furnishing electric light to a portion of the city of N ew York. The defendants were constituted a commission by law to receive bids and award contracts for lighting the-city, commonly known as the Gas Commission. One of the bids or propositions deposited in a box for that purpose was a bid of the New York Electric Construction Company. The commission, by resolution,' at the request of one Hapgood, claiming to represent the construction company, permitted the withdrawal on return of the bid to> the company without considering or passing upon it, and thereafter made the award to other companies.

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The plaintiff, as a taxpayer, brought an action under ■chapter 673, Laws 1887, to restrain the defendants from ■executing any contracts with any of the other electric light •companies under the contracts so awarded. The motion to -continue the injunction was denied on the ground that the action was collusive and lacked the essential element of .good faith.

An examination of the papers presented to the court at special term leads us to the conclusion entertained by the learned- judge who heard the motion. At the time of making the bid the New York Electric Construction Company was a mere paper company, having no plant, no wires by which the service contemplated in the bid could have "been performed, nor any' authority to place electric coneductors in the street, either above or under ground; and upon the argument it was admitted, on the part or the appellant, that the bid was put in for the purpose of securing to that company certain concessions from the competing ■companies, which was agreed to by them, but subsequently repudiated.

From papers presented to the judge below, it is apparent that the action was well under way before the plaintiff had - any connection with it. An examination had been taken in another proceeding which was apparently contemplated to be commenced in the name of William B. Lynch, but which was, as far as we know, never brought. The complaint was all in type-writing, except the name of the plaintiff, which was written in, evidently, after the-complaint itself had been framed. The principal affidavit relied •on to sustain injunction was made by the vice-president of the Electric Construction Company, and there is strong reason to suspect that that company, and not the plaintiff, is the real party in interest here.

This being so, we think the judge below properly refused "to continue the injunction in the exercise of a sound discretion, and he was well supported by the authority of Hull v. Ely ( 2 Abb. N. C., 441 ).

Having arrived at this conclusion, it is unnecessary, at this time, to examine the question raised as to whether or not the defendants were justified in returning to the Electric Construction Company the bid and the check which had been deposited with it, concerning the legality of which we express no opinion.

The order appealed from should be affirmed, with costs.