
    (83 Misc. Rep. 603)
    THOMAS J. BUCKLEY ENGINEERING CO. v. McCALL et al., Public Service Com’rs.
    (Supreme Court, Special Term, New York County.
    January, 1914.)
    Municipal Corporations (§ 336*)—Contracts—Award—Injunction. Where a bidder on a public contract by mistake in calculation filed a higher bid than he intended, and his bid if correctly figured would have been less than any other, he is not entitled to enjoin the board of public service commissioners from letting the contract to other bidders; there being no mutuality of mistake.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 862; Dec. Dig. § 336.*]
    
      Suit by the Thomas J. Buckley Engineering Company against Edward E. McCall and others, as Public Service Commissioners of the First District. Injunction pendente lite denied.
    J. Edward Murphy, of New York City, for plaintiff.
    Archibald R. Watson, of New York City, for defendants.
   GAVEGAN, J.

This is an application for an injunction pendente lite restraining the defendants from awarding or recommending an award to any one other than the plaintiff of a certain contract for the building of a section of the Seventh avenue subway. It appears that the defendant was one of seven companies which submitted bids for the work in question; that when they were opened the plaintiff’s bid amounted to $3,222,634; and that there were two lower bids, the lowest one amounting to $3,059,522. Two clerical errors were made by the plaintiff’s representative in transcribing the figures. The first consisted in inserting $12 instead of .12 per pound for special wire forms in place; the second, in inserting $45 instead of .45 per lineal foot for galvanized iron pipe handrail in place. The correction of these errors, is appears, would bring the plaintiff’s bid about $53,000 below the lowest bid submitted. The plaintiff in its complaint prays for judgment, among other things, reforming and correcting said errors. No authority has been presented nor have I been able to find any which would warrant a court of equity in granting the relief asked. The defendants would not be obliged to award or recommend the awarding, of the contract to the plaintiff had it been correct when submitted and found to-be the lowest when opened. The alleged mistake is one entirely on the part of the plaintiff. As a basis for such an application there must be a binding legal instrument and a mutuality of mistake. Without questioning the good faith of the plaintiff, I am of the opinion that the granting of the application might establish a precedent which would enable a bidder on a future contract for public work to deliberately specify what would seem unusally large prices for certain items, with the idea that if with those items he turned out to be the lowest bidder he would take the contract, while if he was the second lowest bidder' he would claim that a mistake had been made and demand the right to so correct his bid as to make him the lowest bidder. In .the absence of fraud, the court cannot substitute itself for the Public Service Commission, which has full power under, the statute to act in the awarding of contracts. Public interest requires that bidders should be held to-their bids in order that delays may be obviated or minimized in the prosecution of public improvements.

The application for an injunction pendente lite is denied, with $1Q> costs. Submit order on notice.  