
    In the Matter of Brydon Construction Corp., Petitioner, v. Town of New Windsor et al., Respondents.
    Supreme Court, Trial and Special Term, Orange County,
    April 14, 1961
    
      Bryant Fischler for petitioner. Maharay, Ewing d McCann (Arthur 0. Maharay of counsel), for Town of New Windsor and another, respondents.
   Leonard J. Supple, J.

The petition will he dismissed. A permanent injunction cannot be obtained under article 78 of the Civil Practice Act. Epstein Co. v. City of New York, 100 N. Y. S. 2d 326.) Further, if this proceeding be regarded as an application for an order in the nature of certiorari, the court could interfere only if the Town Board did not have jurisdiction of the subject matter, or exceeded its jurisdiction, or did not exercise its authority in the mode required by law. Here, the board had jurisdiction (Town Law, § 197). It did not exceed that jurisdiction and it exercised that authority in the mode required by law. It made a careful investigation in relation to the responsibilities of the four lowest bidders and after a careful appraisal, determined that the experience of the petitioner, the lowest bidder, as an organization was not sufficient to permit the risk of giving it the contract. It is true that individuals employed by the lowest bidder had had experience in the performance of contracts requiring the same kind of work, but the petitioner, the lowest bidder, had never performed a contract of the kind involved and no one was able to inform the board or its agents that the organization of the petitioner had successfully or satisfactorily completed a contract requiring the performance of the same kind of work. In the light of this lack of organizational experience, the board, was well within the bounds of reason in refusing to approve the petitioner and in awarding the contract to the next lowest bidder whose qualifications it regarded as sufficient. There was nothing arbitrary, capricious or unreasonable about its action (Matter of Haskell-Gilroy v. Young, 20 Misc 2d 294, affd. 10 A D 2d 629).  