
    Hiram Gilmore, App’lt, v. The City of Utica, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    1. Municipal corporations—Assessment for paving—Street railroad.
    The fact that the rails for the use of horse cars, in a street repaved by-defendant, were relaid in different positions and that an additional track had been laid down since 1884 by the lessee of the original company, does not take the case out of the principle that the section of the charter of Utica authorizing the common council to require the railroads to repair between their tracks was discretionary, and therefore the omission to assess the railroad company with part of the expense of repaving did not render the assessment void.
    2. Same.
    The resolution for proposals was adopted April 6. The plans and specifications for paving were filed on the líth and 18th days of May, and May 28th the common council passed an ordinance providing for the repaving to be done according to the plans and specifications on file in the clerk’s office. Held, that a separate approval by the common council of the plans and specifications before the publication for proposals is not required by the statute and a failure to do so will not avoid the work thereafter done.
    3. Same—Notice.
    The resolution of the common council directed the clerk to publish the requisite legal notice for proposals for paving Genesee street according to plans and specifications to be prepared by the surveyor. The clerk having followed its directions, Held, that the fact that the resolution did not specify the day when the common council would meet to take final action did not render the subsequent proceedings void.
    4. Same.
    Jurisdiction by the common council was not lost by the error which rendered the first publication unavailable as a compliance with the statute.
    5. Same.
    The specifications were not void because those filed provided in the alternative for the repavement of thirty-six feet in width, with street railroad tracks outside the curbs, and between the curbs and sidewalks, or for the repavement fifty-two feet wide, with a single or double street railroad track m the centre of the street. • ,
    6. Same—“ Most favorable ” bid.
    Where the common council has the power to accept the “most favorable bid,” this does not compel it to accept the lowest bid.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendant.
    
      W. A. Matteson and P. O. J. De Angelis, for app’lt; A. M. Beardsley and Josiah Perry, for resp’t.
    
      
       Affirming 40 St. Rep., 7.
    
   Peckham, J.

First. The fact that the rails in Genesee street for the use of the horse' cars therein were relaid in different positions in the street and an additional track laid down,"by the Utica Belt Line Street Railroad Company since the year 1884, does not take the case out of the principle already decided by us when this case was here before. 121 N. Y., 561; 31 St. Rep., 880. Although the work was actually done by the company above named, yet the rails were nevertheless relaid and the track added by this company in its character as lessee and in the right of the lessor,, and the provisions of the 9th section of chapter 252 of the Laws of 1884 (the general street railroad act), under which the lessee was organized, do not apply any more than they were held to-apply on the former appeal.

Second. The plaintiff also claims the assessment is void because the resolution of the common council calling for proposals was adopted April 6th, and before any plans or specifications-for the work were prepared or filed. The plans and specifications were in fact filed on the 11th and 18th days of May respectively,, and on the 28th day of May the common council passed an ordinance for the purpose of providing for the pavement of Genesee street with Trinidad asphalt pavement, the work to he done according to the plans and specifications then on file in the clerk’s office.

The statute is somewhat ambiguous in wording and is rather blindly drawn, but we cannot say that the resolution deciding to pave according to plans and specifications to be prepared by the city surveyor was void because such plans were not then prepared. They must have been prepared before the final ordinance was adopted, and so they appear to have been. There was no separate approval by the common council of the plans and specifications before the publication for proposals, but I do not see that the statute necessarily requires it and a failure to do so ought not to be regarded as avoiding the whole work thereafter done. It would he a very proper proceeding, for thereby it would appear before the adoption of the ordinance that the common council does approve the plans, etc. But notwithstanding this absence of approval in advance, the common council did approve the plans and specifications when it took final action in regard to them and the proposed work by awarding it to the company which finally did the work. This was done by ordinance adopted in May and subsequent to the filing as stated.

Third. Another ground of illegality is claimed in the fact that the ■common council did not itself prescribe in so many words and in ■detail the exact time for the publication of the notices spoken of in the statute and did not itself specify the day upon which it would meet and take final action in regard to the proposed work. The council by the language of the resolution permitted the city . clerk, as the plaintiff claims, to not only make the requisite legal publication of the notices, but also to himself specify the day when the council would meet for final action. The plaintiff urges that this action or omission of the common council was in fact the delegation of a matter of discretion vested in it to some other person.

The statute requires the council, before adopting the ordinance, "to cause a plan and accurate specifications of the work proposed to be constructed to be prepared and filed with the city clerk, and “it shall then cause to be published in the official newspaper, for three alternate days, a notice of the filing of the said plans and specifications, and that on a certain day, at least six days frdm the first publication thereof, the common council will act in relation to its coristruction, and in the meantime sealed proposals for constructing the work, with bonds for the faithful performance thereof, will be received by the mayor.”

The resolution of the common council directed the clerk to publish the requisite legal notice for proposals for paving Genesee street according to plans and specifications to be prepared by the surveyor. Acting under this resolution, the clerk commenced the publication "of the notice required by law. The publication was thus caused by the common council, for it was done by the proper officer under its direction. It is true it did not specify in its resolution the "day 'when it would meet to take final action, but having directed that the requisite legal notice should be given, and the clerk having followed its directions, we do not think it so far delegated to another a material discretionary power that must be solely and wholly exercised by itself, as to render all its subsequent acts void as not authorized by statute.

The day fixed upon by the clerk under the resolution was actually at least six days from the first publication of the notices, and the plans, etc., were all on file prior to such publication. In truth, the requisite legal notice was published, and the common council met on the day mentioned therein, and then passed the ordinance and awarded the "contrack This is not like the case of the State v. Jersey City, cited by counsel for appellants, and reported in 25 N. J. (1 Dutch.), 309. The notice there actually given was not a compliance with the statute, because there was added a condition which the council itself had no right to make.

Here the statute plainly pointed out the kind of notice, the •■shortest length, the manner of publication and the contents thereof, and every condition of the law was complied with, excepting the council did not itself appoint the day of its meeting, although it, in fact, met as the notice stated, and transacted the business specified therein. This failure to itself appoint a day did not so far affect the jurisdiction of the common council over .the subject-matter of this work as to avoid all subsequent proceedings, including the assessment laid to pay for the work actually accepted by the common council. It was at most an irregularity, omission or error, which is provided for in § 62 and other sections of the charter, and under which the proceedings resulting in this assessment must be upheld as valid and effectual, notwithstanding such irregularity. So long as the error does not partake of the nature of a jurisdictional defect, the statute cures it. Ensign v. Barse, 107 N. Y., 329; 12 St. Rep., 39; Joslyn v. Rockwell, 40 id., 274. Nor was jurisdiction lost because the clerk in publishing the notice required by April 6 made such an error or slip in the first publication that it went for nothing. The clerk attempted to carry out the directions of the common council, but failed in his first effort. He then essayed another, and made the proper publication, and the common council met as published, and performed the official business proper to be done and awarded the contract.' There is no evidence that any one was misled or harmed, or that any one failed to bid on account of the mistake in the first notice. It is not claimed, indeed, that the mistake in the first publication was anything else than the purest technical error.

We think it was entirely proper to treat the first publication as of no validity whatever and to proceed wdth the second publi-" cation, naming a different day for the meeting of the council, as . if it were the first execution of the orders of the council. There was some error in the first publication which rendered it fruitless and illegal, and hence it was no execution of the directions of that body. Jurisdiction by the common council over the subject-matter was not lost by the error which rendered the first publication unavailable as a compliance with the statute.

The same may be said of the first publication being commenced before the filing of the plans and specifications. They were both filed before the commencement of the publication of the notices under which in fact the common council took action.

Fourth. The plaintiff finds fault again upon the ground that there never were any accurate plans and specifications filed, because those which were filed provided in the alternative for the repavement of thirty-six feet in width with street railroad tracks outside the curbs and between the curbs and sidewalks, or for the repavement, fifty-two feet wide, with a single or double street railroad track in the centre of the street

We think there is no weight in this objection. If there were plans, etc., in the alternative, we see no ground for a charge of illegality therein. If the work would be more costly in proportion to the work done if prosecuted with reference to one plan than the other, the offer or proposal could be in the alternative. If the only difference would lie in the extent of the work, a bid per yard or a bid of that nature would entirely obviate the difficulty. Here again is an entire absence of proof that any injury has been caused a human being bv reason of this kind of alternative plan. There is no evidence that any one was misled or prevented from bidding or that the cost of the work -actually done was enhanced a penny by reason of this kind of plan. It is of the purest technicality,, and under these circumstances dburts should not be astute to find some means of setting aside what so far as the evidence shows is a meritorious assessment levied for the payment of the cost of a public improvement.

Fifth. Another ground for avoiding the assessment is, as alleged by plaintiff that the bid of the company which has actually done the work under the award of defendant was not the most favorable, because, as he says, it was not the lowest. The council has the power to accept the most “favorable bid.” At first it accepted the bid which was the “ lowest,” but subsequently it rescinded that resolution and declared the bid of the company which, in fact, did the work, t.o_ have been the “ most favorable,” and then awarded it the contract. Generally it would be perhaps true that the lowest bidder would be the “most favorable.” This is not, however, true as a matter of law. The lowest bidder might not have either the necessary capital, experience or facilities for doing the proposed work, and might be trusting to the chapter of accidents to furnish him with all these necessities in case his bid were accepted. In matters regarding his own business an individual would frequently be acting with the highest economy, and with the truest regard to his own interests, by employing the highest bidder for his proposed work, rather than the lowest. So long as the council was entrusted with the power of awarding the contract for the work to the person making the most favorable proposal, the presumption of official integrity would attach to the action of that body, and in general something more would be necessary to impugn that action than mere proof that there was a lower bid than the one accepted.

Sixth. The plaintiff also charges that the assessment is void because the contract under which the work to be paid for was done contained a provision requiring the contractor to keep the pavement and concrete foundation in perfect repair for five years from the time of its completion, and providing that the compensation for such keeping in repair should be included in the stated contract price per square yard of pavement.

In the plaintiff’s argument it is stated that the charter requires that the expense of repairs of streets shall be payable out of the fund§ of the city at large, and that by § 99 the property abutting on the street which is repaved shall be assessed two-thirds of the expense of such improvement. By including in the contract to repave the amount of a sum sufficient to keep the street in repair for five years, it is said that the owners are thereby charged with two-thirds of the expense of such repairing, when the statute says it shall be repaired at the expense of the city.-

It is doubtful whether the. charter fully bears out the contention of the plaintiff in this regard. The plaintiff refers to § 47, by which it appears that the council is authorized to raise a sum by taxation not to exceed $5,000, to repair city streets and keep crosswalks in good condition, and one-half only is to be expended on paved streets. It does not appear that the common council would not have the right to provide that for making all other and necessary repairs to paved streets requiring more than $2,500 the-expense should be assessed upon the property benefited.

The language is not the same nor necessarily of the same import as that stated in People v. Maher, 56 Hun, 81; 29 St. Rep., 639, for in that case the law provided for the city making all repairs to pavements in the streets paved with a certain kind of pavement. This particular ground of invalidity was not mentioned in the complaint nor in any manner referred to upon the trial, and appears to have been taken at the general term for the-first time. While it' is true the plaintiff is not bound to plead what he terms his theory of the law, yet justice and the proper-way of trying a cause would appear to demand that at least a. statement of the grounds upon which the assessment is assailed should be mentioned on the trial. The learned counsel says that, the ground here taken could not have been obviated if it had been mentioned at the trial. That does not appear. If stated, the defendants might have shown the plaintiff had waived that particular ground, or that he was by some equitable considerations , estopped from setting it up, or that he had released the defendant from all liability on that ground.

Without, therefore, deciding the question on the' merits, we-think it was too late to raise it for the first time on appeal.

We have looked carefully over the other grounds set up by-plaintiff for vacating this assessment, but none of them is of sufficient weight to justify such a result. We think the judgment, should be affirmed, with costs.

All concur.  