
    The Barber Asphalt Paving Company, Appellant, v. William R. Willcox and Others, as Commissioners of Parks of the City of New York, and The City of New York, Respondents.
    
      Specifications for bids in New Yot'k city — wJiat specifications do not authorize the acceptance of a proposal for a patented pavement.
    
    The officials of the city of New York prepared specifications for the paving of a street, which provided as follows1.
    “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 0. The Warren Patent Bitulithic Pavement two inches in.thickness, with a base of bituminous concrete four inches in thickness.”
    “ Method C” related exclusively to a patented pavement which the patentees had the exclusive right to lay.
    
      2eld, that the city officials- were prohibited from accepting the proposal for the patented pavement by section 1554 of the revised city charter, which provides/ “Except for repairs, no patented pavement shall be laid and no patented article shall be advertised for, contracted for or purchased, except under such circumstances that there can be a fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the board of estimate and apportionment, ” for the reason that a fair and reasonable opportunity for competition was not afforded with respect to the patented pavement.
    That the three kinds of pavement were materially different and afforded no standard- of comparison between them by which it could be determined which was offered at the lowest price.
    
      Semble, that- in order to comply with the provisions of the charter with respect to patented pavements, specifications should be drawn prescribing, in general term's, the character of the pavement and the nature of the. material to be used, so that persons in a position to lay patented or unpatented pavements conforming to such general specifications, might compete tíierefor. The right to accept a bid for a patented pavement depends, in the first instance, on its being the lowest, and, if not, on its being, in the judgment of the board of estimate and apportionment, manifested by a three-fourths vote, for the interest of the city.
    McLaughlin, J., .dissented.
    Appeal by the plaintiff, The Barber Asphalt Paving Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day. of November, 1903, denying the plaintiff’s motion to continue a temporary in j unction pendente lite„
    
      L. Laflin Kellogg, for the appellant.
    
      Chase Mellen, for the respondents.
   Laughlin, J.:

This is a taxpayer’s action to enjoin an alleged illegal award of a contract for furnishing and setting new curbstones and paving with a patented pavement known as “ Warren Brothers Bituminous Macadam Waterproof Pavement ” the carriageway of Seventy-second street, between Central Park West and Riverside Park in the borough of Manhattan, New York. The defendants have prepared plans and specifications for this work, and have advertised for proposals therefor. The specifications provide, among other things, that “ The bidder may, at his option, offer to lay the roadway pave^ inent 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 C. The Warren Patent Bitulithic Pavement two inches in thickness, with a base of bituminous concrete four inches in thickness.”

It is conceded that said “ Method C ” relates exclusively to a patented pavement which the Warren Brothers have the exclusive right to lay, and that , with-respect thereto no one can compete with them or their licensees. 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. The plaintiff cobtends that such an award of the contract will be in viblation of the provisions of section 1554 of the revised charter (Laws of 1901, chap. 466), which provides as follows:

“ Except for repairs, no patented pavement shall be laid and no patented article shall be advertised for, contracted for or purchased, •except under such circumstances that there can be á fair and reasonable opportunity for competition, the conditions to secure which shall be prescribed by the board of estimate and apportionment.” The defendants on the other hand claim that the board of estimate and apportionment has prescribed conditions affording a fair and reasonable opportunity for competition and that these conditions are embodied in the specifications. The conditions prescribed which it is claimed admit of such competition are the three methods, A, B, C, already quoted, together with particular specifications with reference to the pavement to be laid under each of the methods respectively. It is further contended on the part of the respondents that ;these conditions conform to the views expressed by ..this court in the case of Rose v. Low (85. App. Div. 461) which, was an .action to enjoin- the award of a contract for paving a portion of Seventh avenue with this patented pavement,at a time when thespecifications described the patented pavement only. After our decision on that appeal adjudging the proposed action to be illegal and in violation of said section 1554 of the revised charter, the specifications in question were prepared evidently with the idea that by adopting them and inviting proposals thereunder the defendants might legally accomplish this purpose of awarding the contract for the patented pavement. I think the respondents are in error in respect to their claim that our opinion in the Bose case is authority for awarding a contract for the patented pavement under these specifications. It is clear that the Legislature contemplated that a patented pavement might, be used notwithstanding the fact that no one but the patentee or his licensee could lay the same; but it is equally clear that it has prohibited the award of a contract for such pavement unless the proposals are invited under circumstances which afford a fair and reasonable opportunity for competition. It is manifest that the competition could not be with reference to the particular patented pavement for the patentee has the exclusive right to lay that. What the Legislature intended, I think, is that the proposal by the owner or licensee of the patent should be submitted in competition with others on the same specifications. Here three different kinds •of pavement are specified with different specifications for each, and one of them relates solely to the patented pavement and is not open to competition. Aside from one being patented and the. others, not, it is evident that the three kinds of pavements upon which bidders have the option of submitting proposals are materially different. “ Method A ” calls for an asphalt block pavement, the blocks to be three inches in '.thickness, with a.base, of Portland cement, concrete and mortar three inches in thickness. “Method B” relates to a pavement of sheet asphalt, only two inches, in thickness with a concrete binder one inch and a Portland cement concrete base three inches in thickness; and “ Method C ” provides for a surface of bitulithic pavement two inches in thickness with a base of bituminous concrete four inches, in thickness. AsT view these provisions of the revised charter, so far as they relate to patented pavements, they contemplate, that the specifications may provide in general terms for a smooth sheet pavement with a base of a certain thickness, prescribing in general terms the material to be used, and with a binder over the base of a certain thickness, prescribing in general terms the nature of the material to be used, and with a surface of a certain thickness, prescribing in general terms the nature of the material to be used — the general description of the nature of the material to be such that the whole maybe open to competition. Then bidders might be allowed to present proposals specifying the price per square foot or yard for which they will lay the pavement according to their special processes or formulas whether patented or not, but which must conform to the general specifications. If any proposal should be for a patented pavement the right to accept it would depend in the first instance on whether it was the lowest and, if not, whether in the judgment of the board of estimate, and apportionment manifested by a three-fourths vote it would be for the interest and advantage of the city to accept it notwithstanding. (Revised Greater N. Y. Charter, § 419.) Thus we would have the competition required by the revised charter.

The provisions of the revised charter prescribing the definiteness with which plans and specifications for public work shall be prepared have not been drawn to our attention nor have I examined them, but I assume from the provisions of section 1554 that they do not require the preparation of plans and specifications with such definiteness and precision as to prevent competition for a patented pavement. If not, then I see no reason why specifications of a general nature may not be prepared along the lines I have indicated or on similar lines, leaving each bidder to present his particular process or formula for preparing and laying the different parts of the pavement, or to file his particular specifications, that will conform to the general specifications prescribed by the city authorities, and in his proposal refer to those thus filed by him. This is the view I entertained when I examined the question on the appeal in the Rose case and it is the view I understand to be expressed in the opinion rendered on that appeal. The specifications in question do not conform to these views. The different parts of the different pavement called for differences in thickness and in the"nature of the material,, aside from the question of patents, and, for these reasons, there would be no standard of comparison between the different proposals, for determining which, in reality, would be the lowest, for they do not involve the same quantity of the different kinds of material nor would they involve the same amount of labor. The city may protect itself concerning the durability and practicability of the pavement by requiring a sufficient bond and a long-term guaranty. With these provisions and requirements the officials representing the taxpayers will be able readily to determine what action the interests of the taxpayers require, and they will be much more likely to obtain the performance of the work at a reasonable price, which is the object of competition, than under specifications such as those presented by this record.

For these reasons I am of opinion that the order should be reversed, with ten dollars costs and disbursements, and motion for injunction granted, with ten dollars costs.

Van Brunt, P. J., and Patterson, J., concurred; O’Brien, J., concurred in result; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I dissent upon the "ground that the question has been decided otherwise by this court. (Rose v. Low, 85 App. Div. 461.)

Order reversed, with ten dollars costs and disbursements, and motion for injunction granted, with ten dollars costs.

(fees DETERMINED' IN THH FOURTH DEPARTMENT IN THE APPELLATE DIVISION, |1904.  