Smith v. Syracuse Imp. Co.

• Decision Date: 09 January 1900
• Parties: SMITH v. SYRACUSE IMP. CO. et al.
• Court: New York Court of Appeals Court of Appeals

161 N.Y. 484

55 N.E. 1077

SMITH

v.SYRACUSE IMP. CO. et al.

Court of Appeals of New York.

Jan. 9, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by William Brown Smith against the Syracuse Improvement Company, impleaded with othrs. From a judgment dismissing the complaint, plaintiff appealed to the appellate division, where the judgment was reversed (44 N. Y. Supp. 852), and defendants appeal. Reversed.

August 20, 1894, a petition bearing date August 15, praying for the paving of Liberty street, in the city of Syracuse, ‘with vitrified paving brick, manufactured by the New York Brick & Paving Company, of Syracuse, N. Y.,’ and signed by the requisite number of owners of property abutting on said street, was presented to the common council of the city of Syracuse, and by it was referred to the highway committee. The highway committee reported favorably about September 10th, and, the report having been adopted, the clerk was directed to serve the proper notices on property owners. Later, and on September 17th, a resolution was adopted directing the clerk to advertise for proposals for paving the street in accordance with the petition. Notice was shortly thereafter published that bids would be received on September 24th, but, as the city engineer had failed to prepare plans and specifications by the return day, no bids were received. Several ineffectual attempts were made in the same direction thereafter, but bids were not received until the 29th day of October. The bids received under this proceeding were as follows: ‘Andrew F. West. $5,170; Homer & Co., $5,194; C. D. Grannis, $5,167; L. D. Hurlbut, $4,715.90.’ At the same time bids were received under another proceeding instituted by the same petitioners for the paving of the same street with asphalt. Such bids were two in number, and were as follows: ‘Warren-Scharf Asphalt Paving Co., $6,422.30; Syracuse Improvement Co., $5,851.80.’ The petition in the last-mentioned proceeding is without date, and was presented to the common council on the 10th day of September. The only substantial difference between the two petitions is that the first called for the paving of the street with ‘vitrified paving brick manufactured by the New York Brick & Paving Company, of Syracuse, N. Y.,’ while the last-mentioned petition asked that the paving be with ‘Trinidad asphalt sheet paving.’ The common council treated the petition presented on September 10th as entirely different from the other proceeding, and referred it to the highway committee, which reported it favorably, and the report was adopted by the common council, which, by resolution, also directed the clerk to notify the property owners of the intention to pave the street with asphalt. All of this was done, and in due course the clerk was directed to advertise for proposals. Either by accident or design, presumably the latter, the bids for paving under this proceeding were received at the same time as were those under the other proceeding, to wit, on September 29th, and were as above set forth. All of the bids were referred to the committee of the whole, and on November 19th a resolution was adopted which designated asphalt as the material with which to pave the street, and which also directed that a contract be made with the Syracuse Improvement Company for that purpose. Thus it happened, all the bids being in, that the common council decided in favor of paving with asphalt rather than with brick, and let the contract to the lowest bidder for ‘Trinidad asphalt sheet pavement,’ but, nevertheless, for a much higher bid than was made for paving the street with brick. The contract was executed by the Syracuse Improvement Company, but, before the city officials had attached their names thereto, this action was brought by a taxpayer to restrain the city and its officials from entering into the contract with the Syracuse Improvement Company for paving Liberty street from Park avenue to West Genesee street with ashalt.

Bartlett, J., dissenting.

William Nottingham, for appellants.

W. S. Andrews, for respondent.

PARKER, C. J. (after stating the facts).

The plaintiff, as a taxpayer, commenced this action upon the theory that the common council of Syracuse had not awarded the contract to the lowest bidder, and this necessarily was so, if the two proceedings referred to were in fact one; for, while the bid of the defendant the Syracuse Improvement Company was the lowest for asphalt sheet pavement, it was not as low as the bids for paving with vitrified paving brick. The two proceedings, while instituted by the same persons, were commenced at different times, and were treated by the common council as proceedings bearing no relation whatever to each other down to the time when the bids for paving the street were received, and then it happened that the bids under each proceeding were received on the same day.

The trial judge reached the conclusion that the proceeding instituted for the purpose of paving a portion...