
    Sherman S. Seltzer, Respondent, v. Samuel J. Garges, as Commissioner of Public Works of the City of New Rochelle, and City of New Rochelle, Appellants.
   Order granting plaintiff’s motion for injunction pendente lite reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. One Michael D. Grattan, after bid, had a contract for furnishing approximately 6,000 gallons of gasoline per month for the year 1931 to the department of public works of the city of New Rochelle. The comptroller refused to indorse said contract under the provisions of section 138 of the city charter, on the ground, principally, that Grattan was not entitled to bid under the proposal. Thereupon the commissioner of public works advertised for new bids. This is a taxpayer’s action to restrain such advertisement and acceptance of proposals for the making of a contract under the new bid. Assuming, without deciding, that the comptroller made an erroneous interpretation of the terms of the bid and of his duties under section 138 of the charter, it constituted nothing more than a simple illegal act without fraud, corruption or bad faith, but was a mistake in judgment; and there is nothing to show any waste or injury •to the city property or anything seriously detrimental to the public interests or producing any public mischief. (Talcott v. City of Buffalo, 125 N. Y. 280; Altschul v. Ludwig, 216 id. 459; Western N. Y. Water Co. v. City of Buffalo, 242 id. 202.) Lazansky, P. J., Kapper, Carswell and Davis, JJ., concur; Scudder, J., not voting. 
      
       See Laws of 1910, chap. 559, § 138.-— [Rep.
     