
    In the Matter of Gerald A. Paccione, Doing Business as Ultra Fuel Company, Petitioner, against Board of Education of the City of New York et al., Respondents.
    Supreme Court, Special Term, New York County,
    October 30, 1959.
    
      
      Mario Avallone for petitioner.
    
      Charles H. Tenney, Corporation Counsel (Leon A. Fischel and Jacob Robinson of counsel), for Board of Education and another, respondents.
    
      Tomback <& Tomback for H. Liebliech & Co. Inc., respondent.
   Francis X. Conlon, J.

The Education Law requires that the contract he awarded to the lowest responsible bidder (§ 2556, subd. 10). The word responsible ” is, however, not limited to financial or pecuniary responsibility but is broad enough to include the bidder’s ability to perform the contract according to its terms (Wilson v. New Castle City, 301 Pa. 358; Duboise Constr. Co. v. City of South Miami, 108 Fla. 362; State ex rel. Eaves v. Rickards, 16 Mont. 145; Mazet v. City of Pittsburgh, 137 Pa. 548; Commonwealth ex rel. Snyder v. Mitchell, 82 Pa. 343; Best v. City of Omaha, 138 Neb. 325; Williams v. City of Topeka, 85 Kan. 857; Hallett v. City of Elgin, 254 Ill. 343; O’Neil v. City of Chicago, 205 Ill. App. 508). The contract to be awarded contains a provision that the contractor shall not * * * employ labor or means in the carrying out of the contract that would in any way cause or result in a suspension or delay of, or strike upon the work to be performed hereunder of any of the trades working in or about the premises herein described, or in or about any other building of The Board or working upon any of the premises of The City of New York ”. If there was reasonable basis for a belief upon the part of the respondents that an award of the contract to petitioner would result in suspension or delays by reason of strikes, the petitioner would not be entitled to an order of mandamus directing respondents to award the contract to it. From the papers now before the court, however, it is not clear whether or not there was reasonable basis for an apprehension on the part of respondents that petitioner would encounter strikes and labor troubles which would delay completion of the contract. A triable issue is thus presented. The matter is accordingly set down on the calendar of Trial Term, Part II for the 27th day of November, 1959, for trial pursuant to section 1295 of the Civil Practice Act and the making of such final order as may be warranted. (See last sentence of § 1295.) Provision is to be made in the order to be settled hereon for the filing of a note of issue.

Additional issues to be tried are whether petitioner abandoned his objection to respondents’ award of the contract to the third lowest bidder, as respondents claim, and as to whether petitioner was guilty of laches.

Settle order.  