
    In the Matter of Michael Magnotta, Appellant, against Herbert C. Gerlach et al., Constituting the Board of Acquisition and Contract of the County of Westchester, Respondents, and Parkway Fleetwood Building, Inc., Third Party Respondent.
   In our opinion the term highest bid ” stated in the terms of sale must be coustrued to mean that bid which would yield to the county the largest net return for the property sold and under that construction the bid of $8,900 net to the county was a higher bid than that of $9,000, subject to a 5% deduction for brokerage. Acceptance by the Board of Acquisition and Contract of any bid other than the highest bid was an unauthorized and illegal act. The statement made at the sale by the county official conducting the sale that the property would be knocked down to the highest bidder, broker or no broker ” was an unauthorized asserted modification of the terms of sale which had been published as required, which may well have misled bidders at the sale and prevented a fair sale upon an equal basis to all bidders, In the interests of justice we hold that the sale was not a valid sale at auction as required by act No. 20-1946 as amended by act No. 36-1946 and act No. 28-1948 of the Board of Supervisors of the county and the terms of sale as published. Johnston, Acting P. J., Sneed, Wenzel and MaeCrate, JJ., concur; Adel, J., dissents and votes to affirm, with the following memorandum: Both seller and bidder are bound by the terms of sale under which the sale is conducted. The printed terms of sale provided that “the party offering the highest bid for said particular plot shall be required to execute a memorandum of sale ”, etc. In explanation the auctioneer announced “ that the property would be knocked down to the highest bidder, broker or no broker.” A bid, being an offer by an intending purchaser to pay a designated price, when accepted, under the terms of sale, amounts to a contract. The successful bidder here should not be denied the advantage of his bid because the public officials charged with the responsibility of conducting the sale may, as an incident of the sale, be liable to a broker for commissions. Such commissions are an expense of the sale and the officials had the right to treat them as such. Settle order on five days’ notice.  