
    In the Matter of the Petition of E. Ellery Anderson, to vacate assessments, etc.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    Taxes and assessment—When pbopebly reduced under laws 1883, chap 410, § 903.
    On the trial of an action to reduce the amount of a certain assessment it appeared that the estimate for bids, the bids, and the contract were for 10,000 cubic yards of earth excavation and 30,000 yards of rock excavation. The quantities developed by the performance of the. contract were 30,576 yards of earth excavation and 9,341 yards of rock excavation. The bid of the contractor who was awarded the contract was the lowest bid on the estimate, but was an “unbalanced bid.” The result was that the cost of the work was more than twice what it would have been if the estimates had been correct. It was shown that had proper surveys been made, an accurate estimate of the quantity and quality of the work could have been made It also appeared that as the work resulted the contractor employed was not the lowest bidder. Held; that the assessment was properly reduced under Laws 1883, chapter 410, § 903.
    Appeal from order of the special term, reducing an assessment for regulating Fourth avenue, etc.
    
      Morgan J. O'Brien, for app’lt; Truman H. Baldwin, for resp’t.
   Brady, J.

The work to be done in order to complete the contemplated improvement, was not let or contracted for, it was assessed, as required by law, and the learned judge in the court below so declared on the authority of Brady v. The Mayor (20 N. Y., 312). The estimate for bids, the bids and the contract were for 10,000 cubic yards of earth excavation and 20,000 cubic yards of rock excavation. The quantities really developed by the performance of the contract were 20,576 yards of earth excavation, and 9,241 of rock excavation, almost an exact reversal of the quantities contracted for. The bid of Thomas F. Kane, who was awarded the contract was the lowest bid on the estimate, but is asserted to have been what is known as an unbalanced bid for the reason that he bid $1.62f per yard for earth excavation and two cents per yard for rock excavation. If the quantity estimated had been correctly stated, the result would have been a cost to the city of $16,650, namely.

Under the statutes governing and controlling the city officials on the subject of expenditures awarding more than one thousand dollars, all contracts are to be made under such regulations as are established by the ordinances of the common council, and, under the ordinances, proposals must be issued for estimates, and advertised, and they must state the quantity and quality of the supplies or the nature and extent as near as possible of the work required. Laws 1873, chap. 335, _§ 91; Revised Ordinances, 1880, pp. 116, 117; Revised Ordinances, 1866, p. 189. The estimates were not approximate, indeed there was a hundred per cent of error m each of the items mentioned. It was not as the proofs show as near as possible as the work required. The witness called for the petitioner satisfactorily explained the method by which sufficient accuracy could be accomplished, and the engineer called on behalf of the city did not contradict him effectually. Indeed, the latter admitted that no appropriation was made for a proper survey, and the surveyor for the compensation given, could not afford to do in detail what seems to have been necessary to ascertain as near as possible the quantity of work required. He admitted that in his estimate he was, to use his own language, “dead wrong,” and this error led to the increased expense. His evidence seems to demonstrate that the methods employed, for the purpose mentioned, were decidedly inadequate, and that a very unwise system prevailed which suggested, while it did not secure, economy of administration. It illustrated the old adage—Penny wise, pound foolish. It is quite clearly shown that the laws were not regarded in the preliminaries to the formation of the contract made for the improvements involved on this appeal, and that the city was required to pay much more than would have been necessary if one of other bids made could have been accepted. The result, therefore, is such that it cannot be said, as in the Matter of Marsh (83 N. Y., 431), that no substantial injury was done, and the petitioner was not aggrieved. In that case it appeared that the bid accepted was in fact the lowest made, and it was said that the rejection of the seemingly lowest bid was a benefit. In the Matter of the N. Y. Protestant Episcopal Public School (75 N. Y., 324), although a similar bid to that accepted herein, and there characterized as an unbalanced bid, so called was sustained, it was for the reason as stated by the learned chief-justice, that it was not per se fraudulent and having passed the ordeal provided by the act of 1872 the court below was, he thought, justified in regarding it free from fraud.

The decision, however, did not rest upon that ground, but upon the erroneous mode in which the assessments were distributed. It is not too much to say, nevertheless, that if the contract. had not been sanctioned by the ■ordeal mentioned it would have been denounced from what the learned chief justice said of the bid, as one which rested upon a basis which might result, and probably did result, unlawfully to the disadvantage of the property owner. If any difficulty existed of ascertaining, with reasonable certainty, the quantity of rock excavation in consequence of geological peculiarities of this island, or if it were practically impossible to subject the rock excavation to competition, a method of arranging the proposals might be adopted as suggested by Denio, J., in Bradg v. The Mayor, supra. It would seem from the evidence herein that there is no element of this character—nothing to prevent, if proper means be adopted, the statement, with reasonable accuracy, of the quantity of rock excavation required within a given area. The object of the statutes, and of' the ordinance in compliance with them, is to prevent fraud or substantial error, and though it may not be within the province of the most experienced and able legislators to prevent this by enactment, it may not be impossible to do so by particular scrutiny when the means is furnished and particular attention called to its possible existence. There was in the bid, which formed the basis of the contract considered herein, a great disparity between the bids for rock excavation and earth excavation, and such as to suggest a possible design to make one price pay them both which would more likely result if the work easier of accomplishment were more extensive than the more difficult, as was the case here. The mere requirement of proposals and publication do not insure safety from fraud or substantial error; it is a means to an end only. The result is to be attained_ by enforcing the spirit of the law, directing these formalities in the acts they call for—honest bids for honest purposes and honest contracts predicate of honest awards after faithful and thorough efforts to secure both. The obligation rests upon the city and not upon the citizens, and when a principle is announced, as in Brady v. The Mayor (supra), controlling all that should be applied rigorously. .The system of unbalanced bids meets with no favor in the cases, and the opportunity to make them available should be seized and employed.

This does not, as suggested, seem to be impossible. None of the cases cited by the appellants are in hostility to these views, and the decision reviewed was right.

The assessment was properly reduced. Section 903, Consolidation Act, Laws 1882, chap. 410.

No more favorable decision could have been given for the city under the facts shown, and order affirmed, with usual costs.

Van Brunt, P. J., and Daniels, J., concur.  