
    (108 App. Div. 170.)
    STOCKTON v. CITY OF BUFFALO et al.
    (Supreme Court, Appellate Division, Fourth Department.
    October 18, 1905.)
    Injunction—Pendente Lite—Insufficient Showing.
    On the ground that a “clear violation of law” is not shown, a temporary injunction is properly denied in a suit by a taxpayer to have declared void a lighting contract between a city and a gas company; it being exceedingly doubtful, to say the least, whether the charter provision (Laws 1891, p. 199, c. 105, § 283) for publication of a notice «before a contract is entered into applies to contracts the power to make which is delegated exclusively to the legislative branch of the city government, as is a lighting contract, or whether section 506, prohibiting the purchase of patented articles, except under conditions allowing competition, applies to a contract for their “use” for a limited period.
    Appéal from Special Term, Erie County.
    
      Action'by Lewis Stockton against the city of Buffalo and others.' From an order denying an injunction pendente lite, plaintiff appeals.
    Affirmed.
    The following is the opinion of Kenefick, J., in the court below:
    The plaintiff sues as a taxpayer to have declared null and void a contract entered into between the city and the Buffalo Gas Company for lighting public buildings and streets and keeping the lamps in repair. Pending the trial of the action he asks that the city be enjoined from substituting. Welsbach lamp heads and burners under this provision of the contract, namely: “The city agrees that during the term of this contract it will use only those burners and lamp heads now in use by said city, reserving unto itself the right to call upon said contractor to supply and substitute Welsbach' lamp heads and burners as the commissioner of public works may from time to time determine at and-for the sum of $24.75 per light per year, said Welsbach lamp heads and burners to remain the property of said contractor.’’ This provision is claimed to be illegal for the reason that no competition was permitted as to lamp heads and burners. The failure to require competition, it is contended, is in violation of sections 283 and 505 of the city charter. Laws 1891, pp. 199, 243, c. 105. It is claimed by the defendants that neither section is applicable.
    Under section 416, p. 225, of the charter, the city is authorized to contract for lighting for a term not exceeding five years, and it specially provides that sections 407 and 408 of the charter shall not apply to such contracts. The sections, from the operation of which such contracts are exempted, provide in substance that no work or improvement involving an expense exceeding $500 shall be ordered, except upon a vote of two-thirds of each board of the common council and after publication of a notice of intention to order the work, and that no contract shall be entered into until after publication of a notice inviting sealed proposals to do the work or make the improvement pursuant to plans and specifications, and until an assessment therefor has been confirmed. It is claimed by the plaintiff that, notwithstanding the exemption of this contract from the above sections, which it will be noticed provide for the publication of a notice inviting sealed proposals, the same requirement is contained in section 283 of the charter, and that the latter section .requires the publication of such a notice before a valid contract for lighting can be entered into. It is exceedingly doubtful, to say the least, whether section 288 applies to a lighting contract. Such a contract is required to be made by the city, acting through its legislative branch, and it would seem as though section 283 was intended to apply only to contracts which the commissioner of public works is authorized to make. Section 283 recognizes the power of the board of public works to make expenditures and enter into contracts in the performance of the work intrusted to it by the charter; but, fearing, apparently, that this power might be abused, it required the consent of the legislative body to any expenditure or contract involving the sum of $500 or over, and also required that proposals should be invited and the contract let to" the lowest bidder. The section does not appear to be applicable to contracts the power to make which is delegated exclusively to the legislative branch of the city government.
    The plaintiff also claims that the provision of the contract above set forth is in violation of section 506 of the city charter, which provides: “Except for repairs no patented pavement shall be laid, and no patented article shall be advertised for, contracted for, or purchased, except under such circumstances that there can be a fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the person, board or body authorized to contract for such article so advertised for.” A similar provision in the charter of the city of New York was under discussion in the case of Rose v. Low, 85 App. Div." 461, 83 N. Y. Supp. 598, and it was there said that: “We think what was intended was that- there should-thereafter be no patented pavement laid and no purchase of a patented article except tinder conditions which would allow competition.” And in the subsequent case of Kay v. Monroe, 93 App. Div: 484, 87 N. Y. Supp. 831, this language was quoted with approval. Under the provision of the contract in question the city reserves the right to call upon the gas company during the period of the contract to use a certain patented lamp head and burner, and agrees to pay an extra fixed compensation for such use. If the true meaning of this section of the charter is indicated in the dictum in the case of Rose v. Low, supra, then it would appear that only the purchase of patented articles is prohibited, and that the use of such articles for a limited period would not fall within the operation of this section. ,
    The general principle governing the granting of preliminary injunctions in actions of this kind is that the plaintiff must clearly show that “the official action complained of is illegal” (Abraham v. Meyers, 29 Abb. N. G. 384, 23 N. Y. Supp. 225, 228); that “the plaintiff’s rights must be certain as to the law and the facts” (Nooman v. Grace, 49 N. Y. Super. Ot. 116); that “there is a clear violation of law” (People v. Mayor, 32 Barb. 102). Upon this application the plaintiff has not established that “clear violation of law” -which would authorize the issuance of an injunction. The complaint charges no corruption on the part of the officials of the city in entering into the contract. The action can be tried very shortly, and the validity of the contract definitely determined by such trial. If the plaintiff’s claims with respect to this provision of the contract are then sustained, the only possible increased expenditure the city will be put to will be for the use of such burners as may be installed from this time until such decision, and the use for that period of time only, and meanwhile the city will have the benefit of concededly better light.
    The motion for an injunction is denied.
    Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
    Louis W. Simpson, for the motion.
    Jung, Penney & Keating, opposed.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on opinion of Keneñck, J., delivered at Special Term.  