The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-14
Law a. to Award or Contrasts
sUPxRrOR ooURT-GNRAL TERM.
rscision OF Judge Hslfmar

rscisioa Of Judge Hoffman
Dso 7.-Horacs r. Rum and Geo ". Reed aT The Mayor,
de-, Of ae CIV # NeW York. Bartholomew B. Iwdy, Con-.
rsisor Of Rpsiys and Supplies, and John Cooke and Geo
Cdrltn Ths motion before ID for an injunction against
the defendants to restrain them ftm proceeding WITH or
executing the work, any part thereof from assert
ing or uslrg any right privilege under certain
luton or estimate set FORTH from interfering with the
pavement Of either Of the streets therein mentioned and
that the plaintiffs may be declared entitled to contract
from the corporation for the paving Of Grand and
Fulton street. within certain limits and that the CON
tracts with Cooke Capn for such pavement BIS
illegal and void The facts material questions and
airing on the papers, are a. foows-Notics
advertised by the Commissioner OF Repairs and Supplies
IN the usual manner for proposals. to be made for the
paving of certain portions Of Fulton street and Grand
October 1882 On the l4th of November 1858, the pro-
poals opered The propc sails Of the defendants
Cooke Capn were to do the work At 81 9s and those
Of the plaintiffs at 50 for every superficial yard Many
other estimates made, but those were the two low
est The propose Of de.endants made and signed
nyipg to be bound that the applicants
RI ouc fulfil their cont act asarder to them and would
pay any loss that would arise IN the BY their refusal
lowest bidder. On the 10th Of November notice
having been given OF the defects, defendants gave
n written notice OF the names of the firm, with
adavt of Cook Cspn bsirg eli the parties interested
They also left written consent OF another to be-
e bso1s s@rssd to
CoEmissoners Of Repairs and Supplies on the 10Th Of
had taken the opinion Of the counsel of the
Corporation upon the Of those etfects and
advised by him that they matters of substance and
net merely OF form. In pursuance OF this advice Gas it
Common Council setting nth all the fscts And submit
tirg the matter to their consideration. On the 10th of
November the Board Of Assistants adopted resolution
that The contract be awarded to George Cooke Co.
This was passed by the Beard OF Aldermen this lsth
and was approved by the Mayor the Both November
menced and are actively engaged carrying on the work
The conditions to be compiled with making proposal
Is contained In the ordinance are printed, and the
dertakin9 of the surstes we'll other particulars 70
contained in the estimate furnished the applicants to be
signed and submitted by them, and purports to be
tracts from the ordinances That which relates the
engagement Of sureties is % the following effect ::
sass e. & ad Of ss ss
bound i: f:hiai sSsI
Mayor e
Obliged Pss next highest bidder 70 whom sho CON
The plaintiffs state that their proposal was made in
strict conformity with the Of the ordinances
and there is nothing to contradict that assertion Ny
opinion upon the various questions which have been
raised upon this state Of facts contained in the follow
ing proposions3-1 The statute Of April H. 1858 to
amend the charter has repealed the ordinances OF
lS49, adopted under the charter of April 2, 1849
AL those ordinances remain In force unless any
with the act Of 1858. find Inconsistency to any
ordnance applicable to the present case think the
der the 23d section of the act o. l840 contracts made by
authority Of the Con- mon Council for work to be DONE
shall be made by the appropriate head. q departments
nances Here then s delegation Of power to make the
contract provided It is made consistent with the ord
nulnDg power under section 10 Of the act Of
ls4o and ordinance 494, hereafter moro pArticu
plainly detective and do not comply With ths directions
Of he To subscribe the OF John Cooke
s not stating the Of AL the persons interest
himself and the signature of but single person to the
contract to become surets and to pay the loss which
Whether such defects are Of substance FORM win be
hereafter examined T. Did the plaintiffs then % dire
, ..1s not
able? This requires analysis Of the Sol section
the first place. the officer Ia bound to reject AL estimates
which not furnished In conformity with sections 4o7
4tS and 400 This and duty to reject u.s. however,
qualified by the provision that errors of form may b
amended within twenty feur hours after mott is
his duty to award the contract to the lowest bidder that
is to the lowest bidder among those Left after the rsec
tcn of uch defective The only cass Of bidders
the provisions OF the sections referred TO- Bat the fun
determination Of that point suspended for twenty four
20 ncsnh. sns Ussr
ment or it is not amer ded, then I apprshsnd the
nsxt lowest bideer whose proposal is fcss from dsfest
titled to the award, and he is satitled by virtue
contract contained in such ordinance 8. Hence the
p,a Bs, having complied with al the acquisitions pre-
crbed, hsd fixed right to the award from the Commits
iners unless the amendments could be legally made of
ne exit ting d0ects IN the other proposal The amend
me nts assume, were made In sufficient form within thu
twenty four hours. We come, them to the question
they were such capable OF amendment-ln other
words we're they Of matter or formf g. In my Judgment
the requisition of q consent from two persons house
holders feehoders to become suress for the fulf
of the contract prescribed in the ordinance Of
the very essence Of the projected see none
in all those stipulations Of more Importance It Ia not
merely that the engagement to answer for the fuld
ment 1t Is that IL the applicant refuses to execute the
CONT act when awarded they will pay or rsthsr secure
payment Of the oss aocruing from giving tie to the
execute-hs throws up his bid-perhAps upon bargain
With the one above himthe public Ii without t. in
dennity expressly stipulated for thsre any Of
the conditions imposed designed and adopted to insure
honesty in an offer and hdsty in performing it. it Is the
in question cannot hesitate in saying that the
feet of subsan and the existence OF IL rendered
the bid wholly null and should have been rejected IL
made. Z. The next question land thus far
IT. Is the oaly one OF ssri9u: difculty0 relates
in these contracts and how far their action and reolu
tien upon the case con,der that under the resolu
and the appropriations made have In themselves effect
upon the rights here involved. The Cor poration had
power 70 repeal OF mGo IN fssaGa 70 pa.t'ur
susnt to its statutory other powers Cases which
have aten under existing ordinances must be governed
by them The Corporation can neither impair rights
ahix construction which viii touch the rights rsa
lations Of parties under such ordinances This PROPOSE
tion does conflict with the authority of the Common
Council under the 4e4th section OF the
with the OF Smith the Corporation determined
In this Court en-! 6pally in the Court Of Appeals s
to the power Of the Corporation to bs exercised by
fuslDg appropriation and discon inuiug the work. In
case is 81 ns t 1 ssqoa alone a.
contract and the estimates laid before the Cannon
Council, ard an appropriation was refused, saying in
effect that the would not 60 with thevork
81 all This . principal ground OF the decision Of
this Court. But the Chief Justice observes =" is
very clear that the Corporation would have no power to
tale the contract from the person to whom 1t had bsen
awarded, and give to another So In Judgment they
could right to the contract which under
fhntrp A.A 49,