
    JOSEPH WALSH v. THE MAYOR, &c., OF THE CITY OF NEW YORK.
    
      Bids Jor work on contracts with City of New York—Laws 1881, ch. 147.— City ordinances.
    
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided November 21, 1887.
    Motion by each party, for judgment upon a verdict directed for the plaintiff by the court, subject to the opinion of the general term.
    The complaint contained two causes of action based upon the refusal of the department of docks of New York city, to award contracts for certain work in the said city, plaintiff claiming to be the lowest regular bidder therefor. It appeared from the pleadings and proof that plaintiff’s certified check (given as security, etc., under L. 1881, ch. 147, § 1), in both instances was inclosed in the envelope which contained his bid, and the envelope thus containing both the check and the bid was deposited in the “ estimate-box.” This was done by the direction of one Whitney, a clerk in the dock department.
    Defendants claimed that plaintiff’s bid was irregular and void.
    The following is an extract from opinion in People v. Thompson, below referred to:—“ The question presented is whether or not it was the duty of the bidders to exhibit to and deposit with the Commissioner of Public Works, or some officer of his department, a certified check, or in lieu thereof the money, at the time of depositing the proposals in the estimate-box. .... The provisions of the statute providing that such checks or money accompany the proposal, must be considered and construed in connection with the other provisions of the section. Those provisions provide that such department or officer is authorized and directed to require as a condition precedent to the reception or consideration of any proposal, the deposit with such department or officer of a certified check upon one of the national banks of the said citv of New York, drawn to the order of the comptroller, or of money, etc. It will be observed that the deposit is to be made with such department or officer, and that the deposit is a condition precedent to the reception or consideration of the proposal. What is meant by the term department or officer ? We can hardly believe that by the term department or officer it was the intention to permit a deposit to be made in a desk, drawer or box in the office. Such interpretation would endanger the rights of the depositors as well as those of the city. It appears to us that the true meaning intended is that the deposit is to be made with the commissioner or other officer of the department. Under this interpretation, the various provisions of the section are consistent with each other. The check or money must accompany the proposal. As a condition precedent to the reception of the proposal the check or money must be deposited with the commissioner or an officer of his department, and on such deposit being made the proposal may be received and deposited in the estimate-box. The ordinance of the city directing that an estimate-box be kept by the Commissioner of Public Works, and that the proposals be sealed and deposited in that box, does not provide that the deposits of certified checks or money should be made in the box (Rev. Ord., ch. 7, art. 1, § 2). It would hardly be considered a safe place for the keeping of such deposits.”
   The Court at General Term said:

"This case presents narrow questions of statutory construction. The decision of The People v. Thompson (33 Hun, 661, MSS. opinion of Judge Haight) should be followed as a precedent. Mr. Whitney incorrectly, according to the case cited, directed what the plaintiff should do with the check, and the plaintiff acquiesced in the incorrect direction.

John C. Shaw, for plaintiff.

John I. Townsend, Jr., for defendant.

Opinion Per Curiam.

Motion by defendant for judgment granted, with costs.  