
    (41 Misc. Rep. 574.)
    BARBER ASPHALT PAV. CO. v. WILLCOX et al.
    (Supreme Court, Special Term, New York County.
    November, 1903.)
    1. Municipal Corporations—Patented Pavements—Competition.
    New York City Charter (Laws 1901, p. 642, c. 466) § 1554, providing that no patented pavement shall be laid except under such circumstances as will give a fair opportunity for competition, does not prohibit the laying of such pavement, but requires a reasonable opportunity for competition among those who would lay a similar pavement.
    2. Same—Injunction.
    A taxpayer of a city is not entitled to an injunction restraining a park board from awarding a contract for a noiseless pavement on the ground that it was prohibited by Laws 1901, p. 642, c. 466, § 1554, where a resolution of the board of estimate and apportionment set forth a competition between three kinds of noiseless pavements, one of them patented, fixed exact specifications how each should be laid, and authorized the city park hoard to advertise for proposals under the same general conditions for all bidders.
    
      If 1. See Municipal Corporations, vol. 36, Cent. Dig. § 855.
    
      Action by the Barber Asphalt Paving Company against William R. Willcox and others. Motion to continue injunction.
    Denied.
    Kellogg & Rose (L. Laflin Kellogg, of counsel), for plaintiff.
    George D. Rives, Corp. Counsel (Chase Mellen, of counsel), for defendants.
   CLARKE, J.

The Barber Asphalt Paving Company, suing as a taxpayer, seeks to enjoin the park commissioners from awarding a contract for repaving West Seventy-Second street. On September 16, 1903, the board of estimate and apportionment adopted a resolution approving specifications for the proposed work which contained the following clauses:

“The bidder may, at his option, offer to lay the roadway pavement in one or other of the following three methods separately described and designated herein, as indicated: Method A. Pavement of asphalt blocks three inches in thickness, with a base of Portland cement concrete and mortar three inches in thickness. Method B. Pavement of sheet asphalt two inches in thickness, with a bituminous concrete binder one inch and a Portland cement concrete base three inches in thickness. Method O. The Warren patent bitulithic pavement two inches in thickness, with a base of bituminous concrete four inches in thickness.”

The resolution proceeded:

“And whereas the specifications following the said clause separately describe and designate the three kinds of pavement in detail, the said Warren patent bitulithic pavement being a patented pavement: Resolved that the park board be, and it hereby is, authorized to advertise for bids for furnishing and setting new curbstones and paving with asphalt blocks, sheet asphalt or bituminous macadam, the carriageway of West Seventy-Second street, between Central Park West and Riverside Park, in the borough of Manhattan, city of New York, in accordance with the said form of ‘Proposals for bids or estimates, bid or estimate, bond contract and specifications,’ this board being of the opinion that the conditions set forth in said form of contract and specifications will secure a fair and reasonable opportunity for competition between the pavement known as the Warren Brothers’ bituminous macadam waterproof pavement, a patented pavement, and other noiseless pavements, and accordingly this board prescribes that the conditions set forth in said form of ‘Proposals for bids or estimates,’ etc., shall be the conditions under which the said patented pavement shall be advertised for.”

The resolution above referred to, and the form of contract, etc., were adopted upon the advice of the corporation counsel after the decision of the learned Appellate Division in Rose v. Low, 85 App. Div. 461, 83 N. Y. Supp. 598, with the open and avowed purpose of affording an opportunity to lay and try a patented pavement on one of the city streets. The court said in the case above cited:

“We think that what was intended [by section 1554, New York Charter, 1 Laws 1901, p. 642, c. 466] was that there should thereafter be no patented pavement laid, and no purchase of a patented article, except under conditions which would" allow competition. .That competition could not be a competition to supply the patented pavement or articles, because the manufacturers thereof have a monopoly of them by reason of their patents. If, however, a certain result was to be arrived at, namely, a smooth pavement to be laid, then there could be advertisements for a smooth pavement which would comply with the requirements deemed proper by the local authorities having charge of the particular street to be paved, and the owner of the patented pavement could compete with others who furnished a pavement which complied with the same requirements, and in that way the patentees of a pavement could enter into competition with others who would lay the same character of pavement, and conditions could thus be created where there could be a fair and reasonable opportunity for competition.”

The resolution of the board of estimate and apportionment sets forth in terms a competition between “noiseless” pavements. The contract sets forth three kinds of such pavements—block, asphalt sheet, and the Warren patented. The specifications as to each kind are detailed, technical, and exact, .so that the successful bidder can be held to the proper performance of his contract. But the competition is between all the classes. What is wanted is a “noiseless” pavement. All conform to that requirement. The competition is not confined within each class, but is between all. The bid of the lowest in all the classes would have to be accepted, unless the board of estimate and apportionment, under the provisions of section 419 of the charter, “by a three-quarters vote of the whole board, shall determine that it is for the public interest that a bid other than the lowest should be accepted.” It seems to me that the views of the Appellate Division have been carried out in spirit and in letter, that a fair competition is provided for, and that the injunction pendente lite should be dissolved. If the method adopted in the case at bar is not the proper one, I can conceive of no way in which patented pavements can be acquired by the city, and the Appellate Division says they can. That being the law as it now stands, the motion to continue the injunction is denied, with $10 costs.

Motion denied, with $10 costs.  