
    In the Matter of the Application of A. Dierks & Co. Inc., Petitioner, against Henry A. Cohen, as Director of the Bureau of Contracts of the Department of Public Works of the State of New York, et al., Respondents.
    Supreme Court, Special Term, Albany County,
    March 4, 1959.
    
      Weidenbaum & Krein for petitioner.
    
      Louis J. Lefkowits, Attorney-General (Thomas Burke and John F. Emiel of counsel), for Henry A. Cohen, as Director, and another, respondents.
    
      Konheim, Ealpern & Wolf for Glens Falls Insurance Company, respondent.
   Donald S. Taylor, J.

This petition, the allegations of which must be conceded to be true upon a motion to dismiss it as a matter of law for its failure to state facts sufficient to entitle the petitioner to the relief which is sought, is sufficient. The question here presented was expressly left open in Psaty v. Duryea (306 N. Y. 413, 420). The determination against the claim of mistake by the petitioner as a bidder for a State contract allegedly arbitrarily and capriciously arrived at by the State officials in my judgment is reviewable under the certiorari provisions of article 78 of the Civil Practice Act. (Matter of Fink v. Cole, 1 N Y 2d 48, 52; Matter of Guardian Life Ins. Co. v. Bohlinger, 308 N. Y. 174, 183, motion for reargument denied 308 N. Y. 810; Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113,118, motion for reargument denied 296 N. Y. 857; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 174-175; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of McCall Corp. v. Gerosa, 2 A D 2d 358.) Accordingly, the respondent State officials’ cross motion to dismiss the petition pursuant to section 1293 of the Civil Practice Act and rule 106 of the Rules of Civil Practice is denied with leave to them to serve an answer within 10 days after the service upon the Attorney-General of a copy of the order to be entered hereon with notice of entry thereof.

Submit order.  