
    T. A. Clarke Company, Appellant, v. Board of Education of the City of New York, Respondent.
    
      Clarke Co. v. Board of Education, N. T., 156 App. Div. 842. affirmed.
    (Argued April 27, 1915;
    decided May 14, 1915.)
    Appeal from a judgment, entered June 13, 1913, upon an order of the Appellate Division of the Supreme Court in the first judicial department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for defendant dismissing the complaint in an action to recover for loss of profits because of being prevented from performing an alleged contract for the construction of a public school. The complaint alleged that the superintendent of school buildings and the bureau of buildings advertised for bids for the construction of Public School No. 92; that various bids were submitted; that plaintiff was the lowest bidder; that its bid was accepted and its sureties approved, and that it was thereafter notified that the award of the contract was withdrawn on account of insufficiency of appropriation. The defense was that by reason of a resolution of the board of estimate, authorizing the comptroller to issue corporate stock for the benefit of the board of education the defendant was limited, in its construction of Public School No. 92, to an amount less than plaintiff’s bid, and that it was ultra vires for the board either to accept any bid for said work or to award any contract for it which was in excess of the amount available; that at the time of the conditional acceptance of the plaintiff’s bid there was not a sufficient appropriation for it, as required by the provisions of the charter.
    
      Edward M. Grout and James F. McKinney for appellant.
    
      Frank L. Polk, Corporation Counsel (Terence Farley of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Collin, Cüddeback, Hogan, Oardozo and Seabury, JJ. Absent: Willard Bartlett, Oh. J.  