
    Joseph Blank, Plaintiff, v. Henry S. Kearney et al., Defendants.
    (Supreme Court, Kings Special Term,
    July, 1899.)
    Greater New York charter — Letting o£ lighting contract.
    A contract, for furnishing to the city of New York gas or electricity for illuminating purposes and for the proper maintenance and operation of lamps in the streets, etc., is one for a “ public purpose ” and cannot be let by the commissioner for lighting the city without the prior authorization and approval of the municipal assembly.
    Motion to continue pendente lite injunction restraining letting and execution of contract for street lighting.
    James 0. Church, for motion.
    R. Percy Chittenden, opposed.
   Maddox, J.

The defendant Kearney, as commissioner of buildings, lighting and supplies is a member of the board of public improvements (Charter, § 100, Laws of 1897, chap. 378), and has power, “ under and in conformity to the ordinance regulating contracts,” to prepare the terms and specifications under which contracts for street lighting shall be made. Id. § 587.

Power is conferred upon the municipal assembly to establish ordinances providing, subject to the provisions of the charter, for the lighting of streets, roads, places and avenues. § 49, subd. 8.

It is the duty of the board of public improvements to prepare and to recommend to the municipal assembly all ordinances and resolutions regulating * * * the lighting of all public thoroughfares, places, bridges and btiildings ” (Id. § 416, subd. 10), and also regulating The making of all contracts for public work or supplies, and agreements in relation thereto by which the city shall be liable to pay money.” Id. § 416, subd. 13.

By section 419 of the charter it is provided that “ All contracts to he made or let for work to be done or supplies to be furnished, except as in this act otherwise provided * * * shall be made by the appropriate heads of departments under such regulations as shall be established by ordinance or resolution of the municipal assembly ” and by section. 417, it is provided that All proposed city ordinances regulating the public work specified in section four hundred and sixteen ” (and the lighting of all public thoroughfares, places and buildings is therein specified) “ must from time to time be adopted or prepared by said board of public improvements, and when approved by said board, such proposed ordinances duly certified shall be submitted to the municipal assembly * * * So far as may be possible in the first instance, and so far as the public business may permit, the ordinances regulating the matters provided for in section four hundred and sixteen of this act shall be submitted to the municipal assembly so as to afford an entire rule of municipal action upon each of the different subjects in said section described and specified.”

The words “ public thoroughfare ” comprehend streets, avenues and places and the words as used in the charter may be held to have been so used synonymously.

It appears that there has been appropriated for the purpose of lamps and lighting the following amounts, viz.:

Boroughs of Manhattan and Bronx.......... $1,340,236 00
Borough of Brooklyn...................... 876,012 67
Borough of Queens....................... 344,091 84
Borough of Richmond..................... 125,528 75
Amounting in all to................... $2,685,869 26

and by referring to section 587 of the charter it will be seen that “ Separate contracts shall be made for such lighting in each of the boroughs of The City of New York, or in such subdivisions of the city as may appear to the board of public improvements and the municipal assembly to be for the best interests of said city."

Again by section 413, it is also provided that “ Except as herein otherwise provided, any public work or improvement within the cognizance and control of any one or more of the departments of the commissioners who constitute the board of public improvements, that may be the subject of a contract, must first be duly authorized and approved by a resolution of the board of public improvements and an ordinance or resolution of the municipal assembly.”

It is claimed on behalf of the defendants that this contemplated contract is not for a “ public work ” within the meaning of that section, but that it is for the furnishing of supplies.

To this I cannot give assent, since it does not relate only to the-furnishing of gas or electricity for illuminating purposes, hut» does, provide also for the furnishing, operating and maintaining of lamps and their care, cleaning, lighting, extinguishing, repairing and, many other details relating thereto, all as one completed undertaking. An inspection of the printed advertisement and proposals for bids and estimates and of the proposed contract, all' attached to defendants’ papers, clearly illustrate the magnitude of the work to be done, and for the performance of which more tham two and one-half millions of dollars have been set apart by the board of estimate and apportionment.

If the performance of such contracts, the lighting of the thoroughfares, streets, avenues, places and buildings of The City of New York, as is contemplated, is not a public work,” then I ana at a loss to know what it is, for it is not the furnishing of supplies within the fair intendment of the word, in my opinion.

But, for the sake of the argument, if it might be so considered, that is the furnishing of supplies, even then I think that, perforce of the provisions of sections 416, 417 and 587 of the charter, fairly interpreted, approval and authorization by ordinance or resolution of the municipal assembly is necessary and a prerequisite to final action of the commissioner in awarding the contracts for such lighting.

The motion to continue injunction pendente lite is granted-

Motion granted.  