In re Raymond

Headnote

Assessmmt — what fraud in the letting of the contract will require the court to vacate it.

Appeal from an order of a Special Term vacating an assessment for constructing five sewers in Sixth, Seventh and St. Nicholas avenues in the city of New York.

The court at General Term said: “ The contracts for the sewers are five in number, all bearing date April 22, 1813. They were made without public competition, and are claimed by the corporation to have been signed on the day of their date. The circumstances under which they were executed are somewhat hovel. It

seems that the city charter of 1873 passed both branches of the legislature on April 17, five days before the date of these contracts, and was immediately sent to the governor for signature. It became a law on April 30, 1873. The commissioner of public works was aware of the passage of the charter referred to, and knew that the new mode of making contracts which would be established by its provisions would prevent the making of contracts by his authority alone. He therefore issued notices requiring the attendance of certain persons supposed to be contractors, that he might make with them such contracts as he desired.

“ The persons thus addressed having made bids in form, contracts were awarded to them. It was understood, however, that the contracts were not to be regarded as perfected in case the act of the legislature mentioned had become a law at the time of their execution. And for the purpose of securing that result the contracts were deposited in a safe in the office of the Commissioner of Public Works and there kept until it was ascertained that they were deliverable under the arrangement first suggested.

“ This incident, taken in connection with others resting in the facts found by Mr. Justice Barrett, is quite sufficient to warrant this court in holding that the matter is affected by fraud within the provisions of the act of 1858 and its amendments ; and therefore that the order of the court below made a proper disposition of the petition* presented to it.

“ The order appealed from should therefore be affirmed, with $10 costs and disbursements.”