
    The Hastings Pavement Company, Plaintiff, v. George Cromwell, as President of the Borough of Richmond and the City of New York, Defendants.
    Action No. 1.
    (Supreme Court, New York Special Term,
    April, 1910.)
    Municipal corporations — Contracts — Sufficiency of advertising for proposals — Precluding competition.
    Where the board of estimate and apportionment of the city of New York in awarding contracts for public work imposes only such conditions as permit a fair and reasonable opportunity for competition, the counts cannot interfere.
    Where the local authorities, on account of the steep grades of the Fingerboard road in the borough of Richmond, determined that it needed a rough pavement and duly advertised for sealed bids for a contract to pave a portion of said road with bitulithic pavement or with asphalt blocks designedly omitting smooth pavements and, in two actions, one by an unsuccessful bidder and the other by taxpayers, to restrain the awarding of the contract, it appeal's that there were nine bids, three for the bitulithic pavement in which the figures ranged from $20,000 to $21,000, five for the asphalt block pavement, in which the figures varied from $18,000 to $28,000, and a sixth bid of $14,621.30 for the latter pavement which, compared with the bid of plaintiff in the first action, showed a difference in favor of the city of nearly $4,000, a motion to continue injunctions pendente lite will be denied in each case and the injunctions vacated, as the advertisement presented a fair and reasonable opportunity for competition.
    Since the intention of the municipal authorities „as to the acceptance or rejection of particular bids bore upon the propriety of the transaction, and a question was raised in respect thereto by the plaintiff, such intention was properly stated by the municipal officers in their answering affidavits and considered by the court.
    Application for an injunction.
    L. Laffiin Kellogg, for Hastings Pavement Company.
    Edward M. Grout and Paul Grout, for Uvalde Asphalt Paving Company.
    Archibald B. Watson, Corporation Counsel (Francis Martin and John F. Collins, of counsel), for defendants.
    Chase Mellen, for Standard Bitulithic Company.
   Clark, J.

Application by the plaintiffs in two separate actions, involving substantially the same subject-matter, to continue pendente lite injunction orders previously granted with a temporary stay.. This opinion is written in both actions.

On December 2-7, 1909, the president of the borough of Bichmond advertised for sealed bids, which would be received until twelve o’clock noon, January 11, 1910, for regulating and paving a portion of the Fingerboard road with bitulithic pavement, or with asphalt blocks. On January 10, 1910, there were issued the injunction orders above referred to, against the awarding of bids returnable January 15,1910. Between the two actions under consideration there is a single difference, namely, that in action Ho. 1 the plaintiff was an unsuccessful bidder; whereas in action Ho. 2 no bid was made by the plaintiff.

Por the contract in question nine bids were received; six (of which one was the bid of the plaintiff in action Ho. 1) for the laying of asphalt block pavement, and three for the laying of bitulithic pavement. The three bids for the laying of bitulithic pavement were made at figures varying between $20,000 and $21,000 five of the bids for the laying of asphalt block pavement were made at figures between $18,-000 and $28,000. The sixth hid for asphalt block pavement, that of Rafferty Bros., was $14,021.30; which amount, as compared with the lowest bid (namely, the bid of the plaintiff in action Ho. 1, at $18,281.30), showed a difference of $3,660 in favor of the city. Bidding was, therefore, not stifled and may result in the saving to the city of $3,660. Upon the above facts the piaintiff-taxpayers have fallen far short of establishing that, in its possible results, the action of the city has caused “ waste of, or injury to, the estate, funds or other property of the city.” Code Civ. Pro., § 1925.

Although the president of the borough has, since opening the bids, declared bis intention of accepting the Rafferty bid for block .pavement, counsel for the plaintiffs claim that such expression of intent is incompetent and that the present motion must be determined as of the date of the advertisement. The expression of such intent, however, was directly drawn out by the plaintiff (Complaint Action Ho. 1, 15) and properly appears in the answering affidavit of the president of the borough.

The propriety of an allegation of present intention, in cases of this class, was recognized in Barber Asphalt Paving Co. v. Wilcox, 90 App. Div. 245, 247, where Mr. Justice Laughlin says: “ The plaintiff alleges, and it is not denied, that the defendants intend to .accept the proposal for the patented pavement and to award the contract accordingly.”

Upon the oral argument there was discussed the question whether the advertisement presented a fair and reasonable opportunity for competition. Greater Hew York Charter, § 1554. The plaintiffs based their right to an injunction upon the .authority of Rose v. Low, 85 App. Div. 461, while the defendants urged a decision in their favor upon the authority of Warren Brothers Company v. City of New York, 190 N. Y. 29. Heither of these decisions, alone, is a controlling authority in the case at bar; with them must be read the report of the Warren ease below, 119 App. Div. 856, noting particularly the dissenting opinion of Mr. Justice Clarke.

In all these cases is recognized and placed beyond dispute the proposition stated by Mr. Justice Ingraham in the Bose case: “The board of estimate and apportionment are authorized to impose the conditions to secure a fair and reasonable opportunity for competition, and where the conditions imposed by them do give such an opportunity the court could not interfere.”

There is not needed, therefore, any discussion as to the controlling influence of section 1554 of the charter; the question to be considered here is, has competition been safeguarded ?

In the Bose case above cited, the patented bithulithic pavement alone was offered to bidders; in the Warren case three pavements were offered; in the case at bar two. The plaintiffs urge that the omission of sheet asphalt in this case invalidates the- whole proceeding. The fallacy of this contention lies in the fact that whereas, in the Bose and Warren cases, for paving Seventh avenue and Seventy-second street, respectively, there was required “ a smooth, noiseless pavement,” no such requirement exists here. For the Fingerboard road is needed a rough pavement on account of steep grades. Sheet asphalt was designedly omitted because it was not adapted to the contemplated improvement and, therefore, was not entitled to a place in the competition.

The president of the borough of Bichmond and the local beard of that borough determined that the roadway in question should be paved. The roadway was not level, but a country road with steep grades. Exercising the power conferred upon the borough president by section 383 of the Greater Hew York charter, followed by action of the local board under section 428 of the charter, the local board purposely omitted, in presenting the proposed improvement to the board of estimate and apportionment,' to include sheet asphalt as a proper or suitable pavement for the locality in question. An examination of the charter shows that the initiative, in the laying of pavements, lies with the borough president and the local board the board of estimate having no power to act upon local improvements, until requested by the local hoards of the several boroughs. This power of initiation cannot be exercised in .a perfunctory and mechanical way. In all public improvements there must he had, before the borough president or the local board shall act, such investigation of facts as will enable them to act intelligently and for the best interests of the borough and city. What is suitable for the level stretches of Seventh avenue or 'Seventy-second street may he wholly unsuited to a country road with steep grades. The difference between such localities would naturally be considered, and would become an important determining factor in the final conclusion as to adaptable methods for carrying out a needed public improvement. In the intelligent exercise of their powers, the president and local board of the borough of Richmond decided that sheet asphalt was not a suitable pavement for the Fingerboard road.

The affidavit of Oxholm, engineer of the borough of Richmond, thus explains why sheet asphalt was unsuitable: “Deponent further says that along the street where it is intended to lay the pavement called for in the proposed contract which the plaintiff seeks to restrain the laying of, the laying of sheet asphalt would be impracticable for the reason that the grade of the street is so steep and the fact that sheet asphalt becomes very smooth on the surface, and after a short time presents a slippery condition. After the asphalt becomes smooth and the surface presents this slippery condition it is almost impossible for horses to travel upon said asphalt without falling, and for this reason it was deemed unwise to lay sheet asphalt upon the street in question.” . President Cromwell likewise shows the reason for the decision reached by himself and by the local board. In his affidavit he says: “ Deponent further says that because of the grade of the street and its condition it was unwise to advertise for bids for sheet asphalt pavement, as that is not a suitable pavement to lay on streets where the gradient is at all heavy, as in the case of Fingerboard road. The block asphalt and bitulithic pavements are, in the judgment of deponent and his engineers, suitable pavements to- be laid on such streets, and are more nearly similar to each other than to sheet asphalt or to any other well known form of pavements.” The papers submitted on behalf of the city show further that both the president and the engineer, Oxhohn, made a careful examination in various localities where bitulithic pavement had been laid, and there discovered that such pavement had proved itself to be satisfactory and durable. What was required on the Fingerboard road was not a smooth, noiseless, slippery pavement like sheet. asphalt, but a pavement so corrugated or otherwise roughened as to aid horses and vehicles in ascending and descending the steep grades which they would encounter. Under such conditions neither the president, the local board nor the board of estimate and apportionment was called upon to permit bidding for smooth, noiseless, sheet asphalt pavement.

Paragraph eleven of the complaint in action Uo. 1 alleges that “ bitulithic pavement is not a well-known form of smooth, noiseless pavementThe city makes no pretense to the contrary; nor do the plaintiffs satisfy the court that asphalt block pavement may not properly enter into competition with bitulithic pavement. The crevices between the blocks may offer to horses the same resistance as rough bitulithic pavement; whereas smooth sheet asphalt would wholly fail of any such result.

Among the irregularities complained of by the plaintiffs is the required use of two alleged patented machines. •

In the Warren case, in the Appellate Division, the record shows (Vol. 1189, App. Div. Cases, First Department, March, 1907, Library of Law Institute) that section 95 and 96 of the specifications read as follows:

“.95. After rolling the wearing surface, there shall be spread over it a thin coating of Warren’s Quick Drying Bituminous Flush Coat Composition, the purpose of this coating being to completely fill any unevenness or honeycomb which may appear in the surface of the mixture.

96. There shall be then rolled into the surface a thin layer of stone chips for the purpose of presenting a gritty surface which will not be slippery.”

In the case at bar the same process is sought to be covered by section 52 of the specifications, in the following language: “ 52. After rolling the wearing surface there shall be spread over it, while it is still warm, a thin coating of Warren’s Quick Drying Bituminous Flush Coat Composition, by means of a suitable flmh coat spreading machine, so designed as to spread quickly over the surface a uniform thickness of flush coat composition.

“ While the flush coat composition is still warm, there shall be spread over it, in at least two coats, fine particles of hot crushed stone, in sufficient quantity to completely cover the surface of the pavement. These stone chips shall be spread by means of a suitable stone spreading machine, so designed as to provide ia storage receptacle of at least five (5) cubic feet capacity and to rapidly and uniformly cover the surface of the pavement with the desired quantity of stone. This spreading machine shall be provided with an adjustable ■ attachment for regulating uniformly the quantity of stone spread at each operation. The hot stone chips shall be immediately and thoroughly rolled into the surface until it has become cool. The purposes of the flush coat composition and the fine particles of hot crushed stone are to not only fill any unevenness in the surface, but also to make the surface waterproof and gritty, thus providing a good foothold for horses.”

To the introduction of these two machines (section 52), the plaintiffs attach great importance; insinuating that they are patented machines; although the plaintiffs fail to prove either that the machines are patented or that they are controlled by Warren Brothers Company, notwithstanding the efforts of the plaintiff to create such impression. The brief of counsel in action Ho. 1 reads:

“ It is stated that these stone chips 1 shall be spread by means of a suitable stone spreading machine, so designed as to provide a storage receptacle of at least five cubic feet capacity and to rapidly and uniformly cover the surface of the pavement with the desired quantity 'of stone. The spreading machine shall he provided with an adjustable attachment for regulating uniformly the quantity of stone spread at each operation.’ This obviously means that Warren Brothers Company have got a machine to do that work,’ and possibly because of the reason that they have not given it a number they refrain from describing it as ‘Warren’s Mo. — Puritan Brand Spreading Machine.’ Mevertheless, it is probably patented; but whether it is patented or not, it is so carefully described and yet so vague that it would be exceedingly difficult for the successful bidder to know just how to make it even if he were allowed to make it.”

“ Mevertheless, it is probably patented.” Would counsel if the machines were in fact patented have ended in the above diminuendo, or would he not have added to the thirty-two letters-patent discovered by his expert affiant, Wilkinson, the numbers of letters-patent covering such machines ? Morrison’s second affidavit does not state that the machines are patented, although cleverly drawn for that purpose. In such affidavit he merely expresses his own interpretation of section 5'2. If the machines were not patented, could Morrison be held for perjury upon his affidavit with respect to subdivisions (e) and (f) ? Section 52 is intended for engineers and contractors. Compared with germane specifications (Mos. 95 and 96) in the Warren case, section 52 simply introduces amplified details of a process to which the two machines are mere incidents, easy of construction. So they were considered by the engineers and by the three bidders for the bitulithic ¡lavement. On the question whether the machines are patented, the most that even Morrison can say is: “It is fair to assume that the careful description contained in the specifications of the kind of machine which must be used to comply with the contract is intended to describe and does describe a machine which Warren Brothers Company have designed, and presumably patented, and which they alone use in their paving business.”

The plaintiffs make further complaint that the proceeding is vitiated by a call for “Warren’s Mo. 24 Puritan Brand Bituminous Cement,” a material which the plaintiffs claim is not included in the offer of Warren to furnish material at $1.44 per yard. Again the brief of the plaintiff, in action No. 1, based on the first affidavit of Morrison and on the affidavit of Wilkinson, is called into play with the same inconclusiveness. Wilkinson states that “ in the thirty-two patented combinations of cement of Warren Brothers Company he cannot distinguish Warren’s No. 24.” This is followed by Morrison’s statement, referring to Warren’s No. 24, that “ It is not included in the offers which they do malee, either specifically or indirectly, except in so far as their agreement provides that the successful bidder may have a free license to use any of their patents, trade marks, etc.”

Even ignoring the failure of the plaintiffs to prove that “ Warren’s No. 24 ” is patented, and conceding that fact, for the sake of this argument, the plaintiffs have surely used no diligence to ascertain facts. readily open to them. Admitting that Morrison has been unable to describe or buy •this cement in open market, these facts alone do not fill the measure of diligence required of the plaintiffs. Have they gone to Warren Brothers Company? Have they asked for the formula, or, more important than all, have they made any inquiry of Warren Brothers Company to find out whether the price of $1.44 included “Warren’s No. 24?” In truth, what have they done that would and could have been effectively done by bona fide, intended bidders under the bitulithic method ? Three contractors, either by the exercise of some intelligence or through some inquiry of which the plaintiffs are innocent, or from the specifications alone, have learned enough about Warren’s No. 24 ” to bid for the bitulithic pavement.

The question whether these actions are bona fide taxpayers’ actions to restrain waste has not been considered, although strongly urged by the defendants, because the decision of that question seems to be unnecessary; nor need it now be considered whether the complainants state two separate causes of action which may be properly joined. The two claims in each action — the claims of the plaintiffs as injured taxpayers and their appeal to equity as plaintiffs who have been specially injured — are entirely dissimilar. In advancing the one claim, under section 603 of the Code, a plaintiff is required to show special injury to himself; under the second claim, a plaintiff is compelled to show injury to the city. The Code does not seem to provide for the joinder, in one action,- of such remedies, and by analogy such procedure is condemned in the case of Warrick v. Mayor of the City of Mew York, 28 Barb. 210, where the court, by Sutherland, J., uses the following language: “By the Code the plaintiff may, in his complaint, present the facts which constitute Ms case, or cases, if he has more than one which may be united; but he cannot experiment with the court by trying first his own case, and then that of himself and others. The Code may cover a multitude of sins, but it is not so charitable as to permit the plaintiff to drop his own case and take up that of himself and neighbors in the same action.”

The application to continue the injunction is denied in each case, with ten dollars costs. The stay in each case is vacated.

Application denied.  