
    Michael Maloney, Plaintiff, v. H. Franklin Maddover et al., Defendants.
    (Supreme Court, Niagara Special Term,
    July, 1912.)
    Taxpayer’s action — municipal corporations — bids to furnish coal to a municipal board of education.
    Injunctions — taxpayer’s action — contract — vacation of.
    The sole test whether a notice for bids to furnish coal to a municipal board of education sufficiently described the grade of coal which would be received, is: “ Could prospective bidders understandingly make offers to furnish coal so that the public might secure the best results from competitive bidding ? ”
    Where the plaintiff, in a taxpayer’s action to restrain, the board of education from letting said contract, fails to establish that the board acted in “ clear violation of law ” in awarding said contract, a temporary injunction will be vacated.
    Motion to vacate temporary injunction in a taxpayer’s action.
    
      E. E. Franchot, for plaintiff.
    F. G. Anderson, corporation' counsel, for defendant board of education.
    A. Thibaudeau, for defendant Clark Shipston.
   Pound, J.

The motion to vacate the temporary injunction restraining the board of education from letting a contract for cannel anthracite coal to Clark Shipston, doing business as the Konnel Coal Company, is now resisted by plaintiff solely upon the ground that the notice to bidders did not describe the material for which the contract would be let with sufficient definiteness to secure the best results from competitive'bidding in that it did not indicate that bids for free burning anthracite, sometimes known as semi-anthracite, Loyal sock, Sullivan county, or Bernice coal, and including the cannel anthracite, would be received. It is claimed on the one hand that cannel anthracite will meet the government test for anthracite and, on the other hand, that it is not a hard anthracite, but is of a distinct grade or class of coal of lower price and, in some respects, inferior qualities.

Could prospective bidders understandingly make offers for furnishing coal, so that the public might secure the advantages of free competition? That is the sole test in such cases. Gage v. City of New York, 110 App. Div. 403.

The published notice to all Coal Dealers ” calls for sealed bids for furnishing 1,450 tons, more or less, of “ pure anthracite coal ” and further states that blank forms upon which the bids must be submitted may be obtained from the clerk.”

The blank form so furnished contains a provision that the bidder agrees his coal to be pure anthracite that will meet the Government test for anthracite coal.”

“ Pure ” in this connection means nothing more than separate from all heterogeneous or extraneous matter ” (Webster’s Unabridged Dictionary), such as pure water or pure gold. It is not a scientific or trade-name nor is it synonymous with “ true ” or hard ” anthracite, as distinguished from free-burning or semi-anthracite.

It is claimed by defendants that the bidders were fairly informed that bids would be received for any unmixed anthracite that would meet the government test for anthracite.

If this notice as modified by the blank form of bid in itself means anything, it means that nothing more would be required than that the coal should meet the government test for anthracite.

The printed form for bids should be read as a part of the notice to bidders, for it is directly referred to therein.

If the notice to bidders was of sufficient definiteness to permit competition by dealers in so-called free-burning or semi-anthracite coal, it matters not what-mental operations of the bidders stood in the way of further bids on that class of coal. Was the notice so indefinite as to permit favoritism and jobbing” on the part of the board of education? Could the board reasonably reject bids for free-burning anthracite on the ground that the notice did not call for such bids ?

Such bidder might, I think, properly insist on the government test for anthracite ” as applied to his coal, and it.would be the duty of the board to let the contract to the lowest bidder, if his coal met that test. City Charter, § 192.

It appears that the coal dealers of Miagara Falls, with a reasonably definite and well-understood test for anthracite indicated to them, took it for granted that bids for free-burning anthracite would not be received. That was an error of judgment on their part which is not brought home to the board of education by any charge of bad faith, fraud, corruption, waste or extravagance on its part, for all that is claimed by plaintiff is that the notice to bidders was so indefinite as to make it illegal to award the contract to the lowest bidder, who specifically indicated that it-was his intention to furnish eannel anthracite, which would meet the government test for anthracite coal.

The plaintiff fails to establish that the board acted in “ clear violation'of law ” in awarding the contract to the Funnel Coal Company. That he must do to prevail on this motion. Stockton v. City of Buffalo, 108 App. Div. 170.

The plaintiff’s case being at best very doubtful on the facts and the law, I am of" the opinion that the board of education should be allowed to complete its purchase without further interference from the court and to have the law established as to the future on the trial of the action.

Motion granted.  