In re Marsh

Headnote

What assessments are validated by the certificate of the comissioners acting under chapter 080 of 1872 — advertisement for proposals — what provisions in do not render a contract invalid — what not a '■‘■substantial error."

Appeal by the Mayor, &c., of the city of New York, from an order of the Special Term, Aracating an assessment for tlie regulating aud grading of Ninety-sixth street from Second to Fifth avenues.

The petitioner alleged that the contract for the work in question was not given out to the lowest bidder, as required by law. The notice to the contractor contained this clause: “ Bidders will state in their proposals the price for excavating rock per cubic yard (one-fourth the price bid for rock excavation will be allowed as the price for earth excavation per cubic yard).” When the bids Avere opened, it Avas found that there were fourteen bidders for the Avork in question, as appears from the memorandum of bids. Patrick Farley Avas the lowest bidder for the Avork; his bid ivas rejected by the Commissioner of Public Works, on the ground that he had bid for earth excavation more than one-fourth the price lie bid for rock excavation, and a memorandum to that effect was made at the foot of Farley’s bid. The contract in question came .before the contract commissioners appointed by chapter 580 of the Laivs of 1872, and was certified by them to be free from fraud, as appears by the certificate of the Comptroller, dated March 9, 1876. The work itself was completed, as appears by the certificate of the inspectors, in January, 1876.

The court, at General Term, said: “ This assessment was validated by the certificate of the commissioners under the act of 1872 (ch. 580). It is not a case of fraud or repavement. Consequently the decision In re Astor (53 R. Y., 617) docs not apply. It is, liOAvever, directly within the principle of In re Peuynet (5 Ilun, 434). The opinion in this case Avas prepared by Mr. Justice Daniels, and his views upon the point in question were subsequently adopted by the Court of Appeals ( 67 N. Y., 441 ). But further,

we do not think that the irregularity complained of amounted to a ‘substantial error,’ by which the petitioner can be said to be ‘aggrieved.’ The commissioner’s invitation for bids, upon the alleged defect in which the petitioner’s case rests, was not an evasion of the statutes. It was rather calculated to prevent evasion. The particular clause wdiich the petitioner, criticises, viz.: ‘ onefourtli the price bid for rock excavation will be allowed as the price for excavation per cubic yard,’ was undoubtedly formulated with a view to secure the really, rather than the apparently, lowest bidder. Such, too, seems to have been its practical effect, as the work was done for less than the lowest competitive offer.”