
    Charles A. Van Iderstine, Plaintiff, v. The Department of Health of the City of New York, Defendant.
    (Supreme Court, New York Special Term,
    January, 1910.)
    Health — Health boards and sanitary officers — Contracts.
    Statutes — Interpretation — General rules — Acts of same date.
    The discretionary power vested in the board of health of the city of New York by sections 1205 and 1206 of the city charter, in the matter of awarding contracts for the removal of refuse, is not controlled by the provisions of section 419 of said charter; and, in the absence of fraud or deception, the court has no right to interfere with the action of the board of health.
    If said sections 1205 and 1206 are in conflict with section 419, they are controlling as later enactments.
    Motion for an injunction.
    Breed, Abbott & Morgan (Julius M. Mayer, of counsel), for plaintiff.
    Francis Martin, assistant corporation counsel, for department of health.
   Newburger, J.

It is apparent from the reading of sections 1205 and 12.06 of the charter that the board, of health is vested with discretion in the awarding of contracts for the removal of refuse, which is not controlled by the provisions of section 4Í9; and, as was said by Mr. Justice Leventritt in the case of Pocher v. Board of Health, found in the Law Journal of March 1, 1905, these sections are not merely emergency sections, but they are most general in their terms, and if in conflict with section 419 would have to be given controlling force, if for no other reason than that by their position in the charter they are to be taken as later enactments. As Mr. Justice Leventritt further says, the power vested being discretionary, the court has no right to interfere except under exceptional circumstances. There is no evidence before me in this proceeding that would warrant this court in holding that there was any fraud or deception ; therefore the motion is denied.

Motion denied.  