
    Smith against The Mayor, &c., of New-York.
    A proposition for regulating a street in the city of Sfew-York, made in pursuance of a notice by the street commissioner inviting sealed proposals for such work, although it he the lowest regular offer made in accordance with the notice, and be reported to the common council by the commissioner as such, does not bind the corporation as a contract until approved and ratified by the common council. „
    When the notice given hy the street commissioner fails to comply with the ordinances of the corporation as to the statement of the amount and form of the security required for the performance of the work, and the security offered is not such as the ordinances require, the corporation is under no obligation to accept or ratify the most favorable proposals.
    Security offered, in general terms for the faithful performance of the contract, is not a substantial compliance with an ordinance requiring security in double the sum stated in the proposals.
    The street commissioner has no power to dispense with any requirement, which the corporation ordinances make imperative.
    The complaint states that on the 15.th January, 1849, the defendants passed an ordinance directing that Twenty-second street, between the Sixth and Seventh avenues, should be regulated and paved, and a space four feet wide flagged through the sidewalk under the direction of the street commissioner and one of the city surveyors. That on the 3d July, 1849, the street commissioner, in pursuance of the statute and of the city ordinances, gave public notice that sealed proposals would be received for such work until Monday 16th July, 1849. The notice is set out in the complaint and contains a specification of the work and materials, and the terms and conditions upon which the contract therefor would be executed; and the complaint then states, that the plaintiff, within the time limited, sent into the office of the street commissioners, a sealed estimate for executing the work, containing all the statements, verifications and securities, and conforming in all other respects to the requirements of the ordinances, and also to the directions and requirements of the street commissioners’ notice for proposals. That at the time and place appointed for that purpose, the estimate sent in by the said plaintiff was found to be the lowest regular and legal estimate presented; and the contract became and was duly awarded to the said plaintiff, as the lowest bidder for the said work. That the street commissioner laid the same before the common council, in order that an appropriation might be made therefor. That the plaintiff duly executed, on his part, a contract in all respects conforming to the ordinances with sufficient sureties and tendered the same to the street commissioner and requested him to execute a like one on his part. That the commissioner refused so to do under the direction of the common council and they refused to make the requisite appropriation, and have authorized the work to be done by others, and hence put it out of his power to perform the work. Wherefore he claims damages to the amount of $6,070.
    The answer of the defendants denies that the sealed estimate of the plaintiff, sent into the commissioner’s office, conformed to the requirement of the city ordinances; and does not admit that it was regular and legal. It denies that any contract was awarded to the plaintiff as-stated in the complaint. It admits the other matters of fact stated in the complaint, but denies that the defendants were bound to enter- into any contract with the plaintiff, unless they deem the public interest will be profited thereby, &c.
    
      The referee reported specially the points raised by counsel and the evidence taken before him; from which it appeared that other estimates and proposals besides those of the plaintiff were received by the commissioner, proposing to do the work for a less sum than the plaintiff, but they were rejected for informality. There was no evidence that the commissioner awarded the contract to the plaintiff, unless the fact of his being the only regular offer, and was reported to the common council, amounts to such award. The publication of the notice was admitted and evidence was given tending to show the difference between the expense of executing the work and the plaintiff’s proposal. The street commissioner failed to comply in his notice with the provisions of the ordinances of the common council, requiring to be stated the amount in which security was required for the performance of the contract, being double the amount stated in the proposals. (Ordinances of Corporation, May 31st, 1849, § 496, sub. 4.) And the security offered by the plaintiff, was not in conformity to the ordinance; not being in any particular sum, but merely undertaking for the faithful performance of the contract.
    The referee reported, against the defendants’ objection, that the bond was in substantial compliance with the ordinance; and second, that from the fact of the plaintiff’s proposal and estimate being regular and the lowest that was offered, it became binding as a contract, upon both parties, without further action, and inasmuch as the defendants refused to make an appropriation for the said contract and directed the commissioner not to execute it, but let it out to others, they were liable to the plaintiff for the difference between the plaintiff’s proposal and the sum for which the work could be done, and he reported in favor of the plaintiff the sum of $6,472.41, for vyhich judgment was given. The superior court, on appeal, reversed the judgment and dismissed the complaint with costs (4 Sand/. S. C. R. 221), from which judgment the plaintiff appealed to this court.
    
      James T. Brady, for the appellant.
    
      Samuel A. Foot, for the respondent.
   Willard, J.,

delivered the opinion of the court.

The allegation in the complaint, that the contract became and was duly awarded to the plaintiff as the lowest bidder, is put in issue by the answer and is not proved. If the allegation means only to assert the fact as a mere conclusion of law, the breach complained of is not a legitimate deduction from the premises. The complaint is, that though the plaintiff has on his part executed the contract with sureties and tendered the same to the street commissioner, and requested him to execute the same, yet he, under the direction of the defendants, has refused to accept the sureties or to execute the contract on his part, and the defendants have refused to make the appropriation, &c. This assumes that some act was necessary, on the part of the defendants, or the street commissioner, or both, before the plaintiff’s estimate and proposal could become an obligatory contract. - If the bargain was incomplete, until the plaintiff’s proposal was accepted, I know of no law, which will subject the defendants to damages, for declining to accept the offer. [ The notice inviting proposals to do the work, did not, in my judgment, bind the street commissioner or the corporation, to accept at all events, the lowest bid, even though in all respects formal. And until the bid was accepted by some act on the part of the corporation, no obligatory contract was created.

The contract in this case exceeded $500, and by the 494th section of the corporation ordinances, it is enacted that “no contract for a sum exceeding $500, shall be signed or executed until such contract and all the estimates relating thereto shall have been laid before the common council, and an appropriation made therefor.” This would be entirely senseless unless the corporation have the right to refuse to» enter into the contract, and to refuse the appropriation to carry it out, after the proposals shall have been. made to the street commissioner, under his notice, and the latter shall have laid them before the common council. Until the final action of the corporation, the proceeding is incomplete, and liable to be defeated by the refusal of that body to proceed further.

Again, the street commissioner did not in this case strictly comply with the ordinances in stating in his notice the amount in which security was to be required for the performance of the contract. He had no right to dispense with any requirement which the corporation ordinances had made imperative. The omission in this case probably lead to the defect in the security tendered by the plaintiff with his proposal. The error of the commissioner did not waive a right which the corporation possessed of insisting on a bond in double the amount of the sum stated in the proposal. This defect could only be waived by the corporation itself.

For these reasons the superior court rightfully reversed the judgment of the special term upon the report of the referee and dismissed the complaint, and their judgment should be affirmed.

All the judges concurred in the foregoing opinion except Denio, J., who did not hear the argument and took no part in the decision. „

Judgment affirmed.  