Hornung v. Town of W. N.Y.

• Decision Date: 19 December 1911
• Citation: 82 N.J.L. 266,81 A. 1116
• Parties: HORNUNG et al. v. TOWN OF WEST NEW YORK et al.
• Court: New Jersey Supreme Court

81 A. 1116

82 N.J.L. 266

HORNUNG et al.

v. TOWN OF WEST NEW YORK et al.

Supreme Court of New Jersey.

Dec. 19, 1911.

(Syllabus by the Court.)

Certiorari, on the prosecution of Matilda Hornung and others against the Town of West New York and Joseph Roscitt, to review a resolution of the Municipal Board of such town. Award of contract set aside.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Collins & Corbin, for prosecutors.

Mark A. Sullivan, for defendant town of West New York.

Pierre P. Garven, for defendant Roscitt.

PARKER, J. Prosecutors attack the legality of a resolution of the municipal body of West New York, awarding to Joseph Roscitt the contract for a street improvement The original prosecutors were competing bidders; but two taxpayers were admitted as additional prosecutors and have assumed the burden of the litigation. The grounds argued are two: That Roscitt, to whom the contract was awarded, was disqualified because he did not deposit with his bid a certified check as required by the conditions; and that he was further disqualified by failing to state in his bid the number of days that he would require to complete the work, which was also required by the conditions.

The first ground is not well taken. Although Roscitt did not deposit a certified check as the term is generally understood, he did deposit a cashier's check upon a bank of unimpeached standing for solvency, to the order of the town, and with his own signature on the back. This made him an indorser. Negotiable Instruments Act (P. L. 1902, pp. 583, 594) §§ 63, 64. Consequently the town had the bank's own promise to pay, indorsed by Roscitt, and was at least in as advantageous a position to enforce compliance with the bid as if the check had been signed by Roscitt and certified by the bank at his request; both being then liable thereon. Times Square Automobile Co. v. Rutherford National Bank, 77 N. J. Law, 649, 650, 73 Atl. 479, 134 Am. St. Rep. 811. There was no substantial distinction between the cashier's check so indorsed, and a certified check, for the purpose of qualifying Roscitt as a bidder. The check was made to the order of the town, instead of the town treasurer, as required in the advertisement; but the requirement was manifestly for the benefit of the town, and the treasurer's authority to collect such a check is unquestionable. P. L. 1895, p. 230, § 29.

But we reach a different result on the second ground of attack. By section 64 of the town act of 1895 as amended (P. L. 1906, p. 325), the town must advertise for proposals for doing the work and furnishing the materials for a street improvement, which proposals shall be presented in such form and manner and under such regulations as the council may prescribe, and "upon the coming in of such proposals the council may enter into contract with the lowest responsible bidders on the terms of their proposals." The council is authorized to reject all the bids and readvertise, but no such action was taken. What happened was this: Bids were advertised for, to be submitted on blank forms furnished by the town, and based on plans and specifications filed in the office of the town...