
    The People of the State of New York ex rel. Anthony Fisher, Appellant, v. James T. Lennon and Others, Composing the Board of Contract and Supply of the City of Yonkers, New York, Respondents.
    Second Department,
    December 28, 1911.
    Municipal corporation — abandonment of proposed improvement after the submission of -bids — mandamus by the lowest bidder.
    Where pending the formal acceptance by the board of contract and supply of the city of Yonkers, a city of the second class, of the lowest bid for a 'street improvement and the execution of the formal contract with the lowest bidder, the city authorities rescind the ordinance under which the bids had been invited with a bona fide intentiqn of carrying out the proposed improvement in a cheaper form than that originally contemplated, a writ of peremptory mandamus will not issue at the suit of the lowest bidder to compel the execution of a contract-with him, particularly where the right to reject any and all bids was expressly reserved by the charter and by the advertisement for the bids.
    Appeal by the. relator, Anthony Fisher, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of August, 1911, denying the relator’s application for a peremptory writ of mandamus to compel-the execution of a contract.
    
      Adrian M. Potter, for the appellant. .
    
      Thomas F. Curran, Corporation Counsel, for the respondents.
   Hirschberg, J.:

The city of Yonkers is incorporated under chapter 452 of the Laws of 1908, as amended, and is governed in accordance with the provisions of chapter 55 of the Laws of 1909; (Consol. Laws, chap. 53), known as the Second Class Cities Law. The respondents, composing the board of contract and supply of the city, in June, 1911, duly advertised for proposals for re-regulating, grading and otherwise improving Yepperhan avenue in said city. The relator, Anthony Fisher, was the lowest- bidder, but before formally accepting his bid and entering into a formal contract, some question was-raised by the respondents as to the sufficiency of the hondsmen proposed by him, and opportunity was furnished to him to procure bondsmen satisfactory to the board. A number of meetings was had between him and the board,.the delay in each instance being occasioned by the insufficiency of the bondsmen suggested by him, until finally, on the eleventh of July, the matter of bondsmen was adjusted by him to the satisfaction of the board. At that time, however, the property owners on the line of the proposed improvement had agreed to furnish to the city certain slope rights for the purpose of filling on the line of the contemplated improvement, which would greatly lessen the public cost; and, pursuant thereto, the city authorities rescinded the special ordinance under which the bids had been invited, with the intention in good faith of carrying on the work in the cheaper form suggested. The relator then applied to Special Term for a peremptory mandamus to compel the execution of the contract, and this appeal is from an ■ order denying his application.

It was held in People ex rel. Lunney v. Campbell (72 N. Y. 496) that where a city advertised for proposals for a street improvement, the lowest bidder whose proposal, had been accepted was not entitled to compel the execution of a contract by mandamus. The court held that if a bidder established a clear legal right to the contract, his remedy was at law in an action against the city to recover damages. The learned counsel for the appellant cites no authority in conflict with this decision. He does cite, the opinion of Judge Vann in Molloy v. City of New, Rochelle (198 N. Y. 402, 412) to the effect that the opinion in the Lunney Case (supra) in so far as it declares that the remedy by mandamus does not exist, is obiter. That opinion, however, was written in concurrence in the result only of the decision rendered by the Court of Appeals in the Molloy■ case. The court in that case decided that a proposal creates no contractual relation between the city and the bidder, and that no contractual relation can arise merely from a bid, unless from the terms of the statute and the advertisement a bid in pursuance thereof is, as matter of law, an acceptance of an offer wholly apart from any action on the part of the municipality or any of its officers. The respondents herein, by the terms of the Second Class Cities Law (§ 120 et seq.) and of the advertisements, expressly reserved the right to reject any and all bids; .but aside from this consideration, it seems plain that the city .would be at liberty for any sufficient reason to abandon the proposed improvement in whole or in part, before the work was actually commenced, leaving even a contractor to his legal remedy for damages.

It, follows that the order appealed from must be affirmed.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  