
    William Bradley, Appellant, v. Robert A. Van Wyok, as Mayor of the City of New York, and Others, Respondents.
    
      Commissioner of parks — authority of, in reference to the library building in Bryant Park — advertisement f or bids — selection of marble, inspection of quarry as to its capacity, selection of one owned by a bidder and the acceptance of his bid though not the lowest, sustained — the premium on bonds to be sold, used to make good, the excess of the contract over the appropriation.
    
    The duty of erecting the public library building in Bryant Park, in the city of New York, which was imposed on the department of public parks by chapter 556 of the Laws of 1897, as amended by chapter 627 of the Laws of 1900, was, by section 616 of the Greater New York charter (Laws of 1897, chap. 378), transferred to the commissioner of parks for the boroughs of Manhattan and Richmond.
    The provision of the act of 1897 directing that the advertisement for bids should be published in the City Record and in two daily newspapers to be designated by the park commissioners, at least fifteen days consecutively before the time fixed for the closing of the bids, contemplated a consecutive publication for fifteen days in the regular issue of the paper, but the advertisement is not defective because it was not published in the City Record on Sundays and holidays occurring during the period of publication, on which days there was no issue of the Record.
    Specifications which specify the quality of the marble to be used in the exterior work of the building, and its color, chemical composition and crushing strength, and provide that the general color and character of the marble shall be similar to the character and color of that used in a certain designated building, and that the quarries from which the contractor proposes to take the stone shall be inspected by the architects, and if the deposit of material and the facilities for quarrying and handling the same are satisfactory to them and to the commissioner of parks, they will issue to the contractor a permit to use material from such quarries, provided that it meets the requirements of the contract, are not open to the objection that they do not admit of full and free competition and are unjust and unfair in that they do not specify any particular kind of marble to be used in the construction of the building.
    The acceptance of the bid of a contractor who agrees to furnish a variety of marble for which the architects express a preference, although such bid is higher than that of another contractor who proposes to furnish a different variety of marble, does not render such acceptance illegal where there is nothing to show that it was not made in good faith.
    The objection that the quarry from which the successful bidder proposes to take the marble is his exclusive property and that marble therefrom is not obtainable in the open market, is not tenable.
    
      The fact that the amount to he paid to the successful bidder is in excess of the appropriation for the work is without merit, where it appears that the premium on the bonds authorized to be sold to pay for the building will be sufficient to make up the deficiency.
    Appeal by the plaintiff, William Bradley, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 2d day of August, 1901, denying the plaintiff’s motion for an injunction pendente lite and dissolving a preliminary injunction theretofore granted.
    
      L. Laflim, Kellogg, for the appellant.
    
      Theodore Oonnoly, for the respondents.
   Ingraham, J.:

The plaintiff, a taxpayer in the city of Rew York, brings this action to restrain the board of estimate and apportionment from accepting a bid for the construction of a public library and the commissioner of parks from executing a contract therefor, and to restrain the comptroller of the city of Rew York from taking any action toward the selection of a bidder therefor or paying out any money of said city under any selection, award or contract therefor. The plaintiff applied for a temporary injunction restraining the acceptance of a bid or the execution of any contract. This motion wras denied, and from the denial of the motion the plaintiff appeals.

The bids were advertised for under the provisions of chapter 556 of the Laws of 1897, as amended by chapter 627 of the Laws of 1900. By that act provision is made for the erection of a building in Bryant Park in the city of Rew York for a public library; and the department of public parks is authorized to erect, construct, maintain, equip and furnish in said Bryant Park, or in or upon any portion thereof, a suitable and appropriate fire-proof building, in accordance with plans to be made and prepared by the trustees of the Rew York Public Library, to be approved by the board of estimate and apportionment in the city of Rew York. The department of public parks is to prepare and submit to the board of estimate and apportionment forms of contracts, specifications and bonds for the faithful performance of the work, and the furnishing of the materials required, from time to time, to be approved by the corporation counsel for the city of New York as to form. When such contracts and specifications and the form of bond shall have been approved by the board of estimate and apportionment, the commissioners of public parks are to advertise for sealed bids or proposals for doing the work and furnishing the materials, as called for by the contract. The bids are to be opened by the said commissioners and to be submitted to the board of estimate and apportionment, which board were authorized to select such bid or bids, proposal or proposals, the acceptance of which would in their judgment best secure the efficient performance of the work.

Acting under the authority conferred by this statute, the commissioner of public parks for the boroughs of Manhattan and Richmond prepared and submitted to the board of estimate and apportionment contracts and specifications and a bond for the performance of. the work, which were approved by the corporation counsel. Such contracts and specifications and form of bond were then approved by the board of estimate and apportionment, and the commissioner of public parks for the boroughs of Manhattan and Richmond caused advertisements to be published for sealed bids or proposals for doing the work and furnishing the materials called for by the contract. Such bids were opened by said commissioner and by him submitted to the board of estimate and apportionment, and such board thereupon selected a bidder. Thereupon this action was brought.

The counsel for the plaintiff makes twelve objections to the legality of the act of the board in selecting the bids. It is hardly necessary at this time to consider at length the several objections. A few observations upon the act itself and the evident intent of the Legislature will be sufficient to dispose of most of them.

The act conferred upon the department of public parks in the city of New York authority to remove the reservoir then occupying a portion of Bryant Park, and to erect, construct, maintain, equip and furnish a suitable and appropriate fire-proof building in accordance with plans to be made and prepared by the trustees of the Rew York Public Library. The administrative work of thus erecting the building was given to the department of parks as then existing, and upon this department was imposed the duty of erecting the building, subject to the requirements of the 2d section of the act as to the method of advertising for bids and the selection of the contractor who was to do the work. Subsequent to the passage of this act, and upon the 1st of January, 1898, the new charter of the city of ¡New York (Laws of 1897, chap. 378) went into effect. By that act a material change was made in relation to the department of parks.

By section 607 of that act it is provided that the “ head of the department of parks shall be called the park board. Said board shall consist of three members, who shall be known as commissioners of parks of the city of ¡New York. * * * In appointing such commissioners the mayor shall specify the borough or’ boroughs in which they are respectively to have administrative jurisdiction, to wit, one in the boroughs of Manhattan and Richmond,, one in the borough of the Bronx, and one in the boroughs of Brooklyn and Queens.” Section 610 prescribes the duties and powers of the park board. It is provided that the park board shall, by a vote of a majority of its members, have power to establish general rules- and regulations for the administration of the department, which rules and regulations, as far as practicable, shall be uniform in all the boroughs; power to appoint a secretary and such subordinate officers as may be necessary for the proper conduct of the office of the department, and to enact ordinances for the government and protection of all parks, parkways, squares and public places within the city.

By section 611 the power to appoint a landscape architect is-given to the board. These seem to be all the powers given to the board as a whole, and it would seem to have been the intention of' the Legislature to confine the board to the legislative work in relation to the parks and the appointment of officers. The administrative work which before was vested in the department of public parks as a whole was by subsequent provision of the charter vested in the several commissioners appointed for the different boroughs.

Thus by section 612 of the charter it is provided that, subject to-such rules and regulations as shall be established by the board, each commissioner shall have charge of the management and be responsible for the care of all such parks, parkways, squares and public places as are situated in the borough or boroughs over which. he has jurisdiction. It is further made the duty of each commissioner to maintain the beauty and utility of all such parks, and to institute and execute all measures for the improvement thereof for ornamental purposes and for the beneficial uses of the people.

By section 613 it is made the duty of the commissioner for the boroughs of Manhattan and Richmond to maintain certain buildings mentioned in the parks in such boroughs and such other buildings as now are or may hereafter be erected in such parks or in any other park, square or public place under his jurisdiction by authority of the municipal assembly.” It is further provided that it shall be the duty of the several commissioners to provide the necessary instruments, furniture and equipments for the several buildings and institutions within their respective jurisdictions, and, with the authority of the municipal assembly, to develop and improve the same and to erect additional buildings.

By section 616 of the act it is provided that the commissioner for the boroughs of Manhattan and Richmond shall in addition to the powers, rights and duties expressly conferred or imposed upon him by this act, possess and exercise all the powers, rights and duties, and shall be subject to all the obligations heretofore vested in, conferred upon or required of the corporation known as the mayor, aldermen and commonalty of the city of New York, or the department of parks in said city, or the commissioners of parks, or in any other board, body or officer therein or thereof, or in any commission, commissioner, body, board or officer in or for the county, of Richmond, so far as such powers, rights, duties and obligations concern or affect the control, care, management, government, extension, maintenance or administrative jurisdiction of the parks, squares and other public places situated or lying within the boroughs of Manhattan and Richmond or either of them at the time this act takes effect or which may thereafter be opened or established therein, so far as the same are not inconsistent with this act.”

Under this provision it is quite clear that the administrative work relating to the parks in the boroughs of Manhattan and Richmond, including the erection of buildings in any of such parks which theretofore had been vested in the department of .parks of the city of New York, was imposed upon the commissioner for the boroughs of Manhattan and Richmond, and not upon the department of parks. The erection of this building was a duty imposed upon the department of parks under the act of 1897; and under the charter that duty was imposed upon the park commissioner for the boroughs of Manhattan and Richmond, and with the performance of that duty the park board had nothing to do, except so far as it had power to make general rules and regulations which would include the performance of this duty by the commissioner for the boroughs of Manhattan and Richmond. It is quite clear, therefore, that it became the duty of the commissioner for the boroughs of Manhattan and Richmond to prepare the contracts and to cause the advertisements for bids to be inserted; to superintend the construction of the building, and to make and prepare certificates for the aceejfiance of the work of the contractor and for the payment of the amount due under the contract; and also to receive all bids or proposals for doing the work. This disposes of the second, third and ninth objections to the contract.

• The first objection is, that the proposals for bids were not published in the City Record and in two daily newspapers designated by the commissioners of public parks, at least fifteen days consecutively before the time fixed for the closing of the bids, as directed by the statute. Section 2 of the act provides that when such contracts and specifications and the form of the bond shall have been approved by the board of estimate and apportionment, the commissioners of public parks shall advertise for sealed bids or proposals for doing the work, which advertisement shall be published in the City Record and in two daily newspapers to be designated by the said commissioners at least fifteen days consecutively before the time fixed for the closing of the bids. It was alleged by the plaintiff that these advertisements were inserted in the City Record on the 24th of May, 1891, and published therein to and including June 13, 1891, excepting Sunday, May twenty-sixth, May thirtieth, a holiday, Sunday, June second, and Sunday, June ninth; but it also appeared that the City Record, being a journal published by the city of Rew York, was not published on Sundays or holidays. It may well be doubted whether this provision is mandatory; but if it is, it certainly cannot be held to require a publication in an official journal on Sundays and holidays, when there was no issue of the journal. What was contemplated was that fifteen days’ notice should be given

to bidders by the publication of such notice in the newspapers designated, upon the days when such newspapers were usually published. The publication in the GUy Record was inserted in each issue of that newspaper for more than fifteen days’ prior to the opening of the bids, and clearly was sufficient within the statute. It appears that the commissioner of parks for the boroughs of Manhattan and Richmond designated the New York Times and the New York Daily News as the two newspapers published in Rew York in which the notice should be inserted. Such notice was published in these iwo newspapers daily, commencing on May twenty-seventh, until and including June J, 1891. These newspapers were published daily, including Sunday, and the notice appeared in each daily publication of these newspapers, including Sunday. This, I think, was a compliance with the statute. These newspapers published a regular edition on Sundays and holidays. The statute requires that the notice should be published for fifteen consecutive days, and contemplates, we think, a consecutive publication for fifteen days in the regular issue of the paper as published; and these newspapers being regularly published upon each Sunday and holiday, such notice was regularly published in the Sunday edition as well as in the weekday edition.

The case of Voght v. City of Buffalo (133 N. Y. 463) is not at all in conflict with this view, as that was based upon a finding that the Sunday edition that did not include the notice was published and sold under different terms from'the week-day edition, and the fact that the publication was omitted there Sunday was not a failure to comply with the provision of the act that the notice should be published in five consecutive numbers of the official paper of the city. Ro such fact is shown here. The newspapers in which these notices were published had regular editions, and these notices were published daily, and a publication of these notices in each issue of the paper, including Sundays and holidays, was not a failure to comply with the provisions of the statute.

The fourth objection is, that the specifications upon which the proposals and bids were based did not admit of full and free competition, and were unjust and unfair, in that they did not specify any particular kind of marble to be used in the construction of the building. There is nothing in the statute which prescribes that the contract or specifications shall specify the particular marble to be used. The specifications specify the quality of the marble' to be used in the exterior work, and its color, chemical composition and crushing strength, and provide that the general color and character of the marble should be similar to the character and color of that used in the so-called Drexel Building at the southeast corner of Broad and Wall streets, New York city. It was further provided that the quarries from which the contractor proposes to take the stone will be inspected by the architects, and if the deposit of material and the facilities for quarrying and handling the” same are satisfactory to them, and to the said commissioner, they will issue to the contractor a written approval of the same, with permission to deliver the material from such quarries, provided that it meets the requirements of this contract in all particulars. There is certainly nothing that is illegal in this provision, or that is beyond the power of the officers of the city to prescribe.

It seems that there were several bids submitted for doing the work. One of the bidders, who appears to have instigated this action, bid for what is known as “ South Dover ” marble, $2,788,000 ; while Nor cross Brothers, whose bid was accepted, bid “Valley Quarry Dorset ” marble, $2,865,706. At the meeting of the board of estimate and apportionment a report as to the qualities of the marble specified in the several bids was made, and a statement made by one of the architects to the board. Although there is a dispute as to what was then said, the architect expressed a preference for Dorset Valley marble, and the board thereupon accepted the bid of Norcross Brothers. There is absolutely nothing to show that this determination was not made in good faith and considered by the officers in whom the statute had vested the power to select the bid as for the best interests of the city. The fact that an unsuccessful bidder considers that his bid should have been accepted is certainly no reason for the court to override the. discretion vested in the board of estimate and apportionment. The allegation that the architect stated that the Drexel Building was built of “ Valley Quarry marble” was denied by the architect. What was said was that Dorset marble was used, and that statement was true.

The plaintiff also makes the objection that the board designated the quarry from which the marble should be taken, whereas, by the terms of the contract, the selection of the quarry was left to the architect. But the form of the bids required that such a selection should be made, and the architects have examined all the quarries and reported that they were satisfied with the Valley quarry as fully equal to other Dorset quarries, and that the contractors had the facilities for obtaining sufficient marble for the building. Upon this report the board was fully justified in accepting the bid.

The objection that this quarry is the exclusive property of a successful bidder, and marble therefrom is not obtainable in the open market, is without force. The specifications did not require that marble from this quarry should be used, and the bid that ivas accepted was lower than that of any other bidder who had the facilities for furnishing Dorset marble. This disposes of the fourth, fifth, sixth, seventh and eighth objections to the contract.

The objection that the amount to be paid to the successful bidder is in excess of the appropriation for the work, is equally without merit. There is no provision in the statute requiring an appropriation to be made before the contract is executed. What the board has done is to authorize the comptroller to issue bonds to an amount that will produce sufficient to pay for the building. The difference-between the total amount of the bonds authorized and the amount of the contract will be furnished by the premium at which the bonds can be sold.

The objection that no power is given by the statute to award any contract is frivolous. The plain intention was that the contract should be executed with the bidder selected by the board of estimate and apportionment.

We have examined the other objections,-but they are clearly without merit and require no discussion.

It follows that the order appealed from is affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ.,' concurred.

Order affirmed, with ten dollars costs and disbursements.  