Moran v. Board of Trustees — 35 N.Y. St. Rep. 335

Majority

p. 335

James H. Moran, App’lt, v. The Board of Trustees of the Village of White Plains et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

"Municipal cokpokations—Contracts—Sewers.

The hoard of trustees advertised for bids for building a sewer, the specifications for which included house connections, but without any estimate of quantity of pipe for such connections. Bids were received from M. and Q-., the former of which, exclusive of the house connections, exceeded that of G. by $1,600; but the bids on such eonnections were such that, including them, G.’s bid exceeded M.’s by $3,000 on one street alone. The board rejected G.’s bid as unbalanced and suggestive of fraud, and awarded the contract to M. Held, that the house connections were a part of

p. 336

tlie hid and contract, although the individual owners of the houses were to pay their cost, but even if they were not, the board had the right to award the contract to M. as the lowest responsible bidder, and that their action was not such an abuse of power as to constitute waste entitling a taxpayer to interfere.

Appeal from judgment dismissing the complaint.

This is an action commenced by a taxpayer, under chapter 531 of the Laws of 1881, to restrain the board of trustees from building four-inch house sewers and a system of sewerage “ other than through an acceptance of the bid of Otto H. Greorgi,” on the ground that Georgi was the lowest responsible bidder.

By chapter 609 of the Laws of 1889, the board of trustees of the village of White Plains was authorized to adopt and establish, subject to the approval of the state board of health, a permanent system of sewerage and drainage. After receiving such approval the board was authorized to construct the sewers and was directed to let the contract “to the lowest responsible bidder.”

Having made the preliminary surveys and employed the necessary experts and engineers, maps and plans were prepared, the-present system was adopted by the trustees and approved by the state board of health.

The necessary specifications were prepared and given to all persons desiring to bid for the construction of the work.

No reference is made in the statute nor in the above estimates to house sewer connections, but the specifications contained the statement that they should be laid four inches in diameter from each Y branch in the street sewer to the curb.line on such streets-as the board should direct at a price stated in the proposal. The blanks for proposals had this item of 4-inch house sewer pipe; added to the above items, but without any estimate of quantity, and bids upon it were accordingly made at so much per foot.

The lowest bid on the above estimates was that of Otto H. Georgi for $158,078.80, and the next lowest that of John 0. Merritt for $159,690.03. Georgi bid 80 cents per foot for 4-inch house sewer connection, and Merritt -35 cents per foot. Both bidders complied with all the conditions required of them to obtain the contract.

The counsel of the board having advised them that they had no power to construct house sewer connections, they entered into' a written contract with Merritt that he should do the work in the-estimates for the village on his bid and build house connections- for individuals at his bid price of 35 cents.

Prior to awarding this contract the board rejected Georgi’s bid on the ground that it was' unbalanced and suggestive of fraud.

The expense of the house connections on Eailroad avenue alone, at the rate of Georgi’s bid, would exceed the cost under Merritt’s bid by the sum of $3,000.

Edgar A. Turrell, for app’lt; H. T. Dykman, for board of trustees, resp’ts; Wilson Brown, Jr., for John O. Merritt, resp't.

The idea of a sewer in a city or village implies its-use for the purpose of a drain for the houses, and it is more convenient, a great saving of expense, and avoids the tearing up of

p. 337

the streets if the connections are made at the time the sewers are built.

If the bid in this case is made to include the house connections, then the bid of the defendant Merritt was much the lowest. We think it was a part of the bid and contract, and that the contract was properly awarded to him.

The fact that the individual owners of the houses to which the connections were to be made were obliged to pay the expense of such connections was immaterial.

The trustees were acting for the people, and it was their duty to weigh all the circumstances and render such a judgment as would best carry out their trust.

The specifications included the house connections, and there can be but little doubt but that upon the face of the bids Merritt was the lowest bidder; but if the house connections are not to be regarded as included in the contract, the trustees had the right to award the contract to Merritt as being the lowest responsible bidder.

It is beyond question that the trustees acted in good faith and for the best interest of the people whose agents they were, and it, is, therefore, a mere question of power under the statute that is challenged by the plaintiff.

The difference between the bids was small, and the trustees, were called upon to exercise their judgment as to which was the lowest responsible bidder in view of all the circumstances.

As was stated in the case of Martin v. The New Capitol Commissioners, 55 How. Pr., 118 : “Efficiency and promptness in doing the work must depend largely upon the man who does it, having-reference to his ability, integrity and responsibility. The board was authorized to discriminate between the bidders.” “ So long as there has been no abuse of discretion, but only honest action to carry out the legislative will, the court will not interfere.”

The bid of the plaintiff was well calculated to excite a suspicion of bad faith, and cause the trustees to hesitate and seek the advice of their counsel and engineers, and it was only after such careful investigations the decision was made. Such a determination is quasi judicial and not the subject of review in the courts. People ex rel. Coughlin v. Gleason, 22 N. Y. State Rep., 103.

It must be borne in mind that this action is in the nature of one of waste, and unless a gross abuse of power is shown the action of the board must stand.

It was the duty of the board of trustees not only to take measures for building the sewer as required by the act, but to use reasonable care to protect individual owners of the buildings to be connected with the sewers. It was not reasonable in order to save the small sum of $1,600 upon the main contract to permit the owners of buildings along the sewer to be robbed by having to pay prices more than double their value for house connections.

There is no merit in this action, and the judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.