#### Frank W. Molloy, Plaintiff, v. The City of New Rochelle, Defendant.

Second Department,

January 10, 1908.

'Municipal corporation — requirement that municipal contracts he let to lowest bidder —action for damages.

Even though a municipal corporation, in violation of a' charter provision requiring municipal-contracts' to he let to the lowest responsible bidder, has awarded a contract to a higher bidder, the lower bidder cannot'maintain an action . against the municipality to recover loss.of profits.

This, because no contractual relation exists, the charter provision being intended for the benefit of taxpayers, not for the benefit of bidders.-

*It seems,*that the remedy of the - lowest, responsible bidder under such circumstances is to enjoin the common council from making an award to higher bidders. '

Motion by the plaintiff, Frank W. Molloy, for'a new trial upon a case containing exceptions ordered to be heard at the Appellate ■ Division in the first instance upon- the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Westchester Trial Term, held in March, ly07.

*L. Laflin Kellogg [Alfred C. Pette*with him on the brief], for the plaintiff.

*William D. Sawyer,*for the defendant.

Rich, J.:

The facts in this case are substantially as follows: The defendant’s charter (Laws of 1899, chap. 128, § 33) provides: “Whenever any expenditures- to, be made or incurred by the common council .or city board dr any city officer in behalf of the city for work to be done,, or materials or supplies- to be furnished, except ordinary repairing and macadamizing of' streets, shall exceed -two hundred dollars, the city clerk shall advertise for and receive proposals therefor, in such manner, as the common council, or -as the board or officer charged with making such contract shall prescribe, and the contract therefor shall be let to the lowest responsible bidder, who shall execute a bond to-said city with one or more sureties, being freeholders, for the faithful performance of the contract,” etc. The *643defendant’s common council caused a notice to be published for sealed proposals for regulating and grading certain of its streets, stating in the advertisement: “The Common Council reserves the right to reject any and all bids.” The plaintiff duly filed proposals for a portion of the work. Six bids were received, including plaintiff’s, Which were referred to the street and sidewalk committee of the common council and the city engineer to be tabulated, the result of which established the plaintiff to be the lowest, with a bid of $61,626.30; Ensinger Brothers were next lowest with a bid of $64,204.40; and the other bids ran from $69;150 to $84,395. ' The committee and engineer reported this result to the common council, with their recommendation that the contract for the improvement for which the plaintiff bid be awarded to Ensinger Brothers. On the filing of this report the council rejected plaintiff’s bid and awarded the contract to Ensinger Brothers at the amount of their bid, $64,204.40, against plaintiff’s written protest that he was the lowest responsible bidder and entitled under the charter provisions to the contract. He thereupon brought this action, in which he seeks to recover damages alleged to have been sustained through loss of profits by the refusal of the common council to award the contract to him. The learned trial justice, at the close of plaintiff’s evidence, upon defendant’s motion, dismissed the complaint, holding as matter of law'that the action could not be maintained, and the correctness of this decision presents the only question for our consideration.

The plaintiff was the lowest bidder, and at the time of filing his proposal he was solvent, and by experience was qualified to do the work. There was a failure on his part to comply with the require ment to verify his proposal, nó signature being attached to the affidavit, although the notary attached his signature and office thereto, which the plaintiff contends under the decision of *McCord*v. *Lauterbach*(91 App. Div. 315) made the bid irregular, and justified its rejection by the council; and while the case is an authority for this .contention, we do not care to determine the question here presented upon that ground. The plaintiff relies upon *People ex rel. Coughlin*v. *Gleason*(121 N. Y. 631) as authority for his contention that under the provisions of defendant’s charter it was obligatory upon the common council, if it awarded the contract to *644either of the bidders, to award it to plaintiff; that no right existed for their arbitrary rejection of plaintiffs bid in favor of a higher bidder, and that in the absence of proof of facts tending at least to show that plaintiff was not responsible, his right to recover the damages sustained through loss of profits was established. Conceding this contention (with the exception of the right of recovery) the cases cited by counsel do not sustain the proposition that upon the facts disclosed by the record before us, the unsuccessful bidder may maintain an action against the municipality to recover the damages he is alleged t > have sustained through logs of profits. -The case of *People ex rel. Coughlin*v. *Gleason (supra)*presents a motion for a peremptory writ of mandamus directed to the mayor of Long Island City, commanding him to issue a warrant to the relator for a sum audited and allowed him, as a contractor, by the common council of said city. That body had awarded a contract over the veto, of the mayor to a,higher bidder, and it. was sought to compel the mayor to draw a warrant in his favor for .some portion of the con-, tract price audited and allowed by the common council. The' mayor resisted the motion upon the ground that the contract was illegal and void. That case does not sustain the contention that an action may he maintained for damages. Mo contractual relation existed between the parties in the case at bar, and I am unable to find any authority in support of the existence of a right to recover damages in such an action. The authorities cited by plaintiff are all based upon an acceptance of the bid, which established a contractual relation from which flowed the right of recovery. As has been repeatedly held, a provision for the award of a contract to the lowest responsible bidder, by a municipal corporation, is intended to benefit, the taxpayers and not the bidder; the duty is a public one, and not for the benefit of individuals or the promotion of private interests. Its violation does not inure to the benefit of the lowest bidder, and the statute creates no liability in terms for such violation. Had the plaintiff commenced the proper proceeding against the defendant’s common council to prevent its entering into a contract with Ensinger Brothers, and to compel the award of the contract to him, he might have found relief, and the. very results contemplated' by the statute would have been effected ; but *645there is no rulejof law permitting the recovery of damages by the lowest responsible bidder in an action brought against the municipality, upon the facts presented by this record.

The exceptions taken at tlie trial must be overruled, the decision of the trial court in dismissing the complaint sustained, and judgment entered upon the dismissal, with costs.

Jenks, Hooker, Gaynor and'MiLLER, JJ., concurred.

Exceptions overruled and judgment affirmed, with costs.