Warren Bros. v. City of New York , 103 N.Y.S. 1145 ( 1907 )

Scott, J.:

In Barber Asphalt Paving Co. v. Willcox (90 App. Div. 245) the very contract involved in this submission was condemned and declared to be illegal and void under section 1554 of the Greater New York charter. ^* While I ' do not at all concur in the reasoning by which that result was arrived at, I consider that that case-settled the law upon the subject so far as this court is concerned, and for that reason alone feel constrained to vote for a judgment-in favor of the defendant. right to lay that.” The court further said: “As I 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 may be open to competition.” There are two practical difficulties, one engineering and the other legal. The engineering is that the difference in the pavements to be laid consists of differences in their material and in their method of laying. Assuming three smooth and noiseless pavements alike in providing a smooth carriageway, that which differentiates them is caused by the difference in the method of laying, the relative thickness of the different constituent parts, the base, binder or surface, and the materials which are used. It would be difficult, if not impossible, as an engineering feat to provide for such general specifications in the way indicated as would procure different kinds of pavements in competition. The legal objection is that experience has demonstrated that general specifications in city contracts will not do; that it is of the utmost importance in producing good and durable, results that the specifications be full, detailed, minute and accurate so that the contractor may be kept to the closest performance of his contract with the public. Those members of this court who have had experience in the corporation counsel’s office of the city of New York havé learned the bitter experience that the city has had in past years by loose and general provisions in its contracts. ' Upon this question of general or detailed specifications the learned justice who wrote the opinion in the Wülcox case when he came to write the opinion for this court in Gage v. City of New York (110 App. Div. 403), seemed to come to another conclusion. He said, “Definite plans and specifications are necessary • to insure the economical performance of the work by getting the best results from competitive bidding,” and an Injunction against letting' a public contract was . sustained upon the ground that the specifications were general and not definite. Proposals and contracts are prepared and presented, not only for the purpose of insuring fair competition, but as the same proposals, estimates and contracts when accepted become executed as the contract upon which the work is to be done, it is necessary that they should also be of such a nature as to secure the proper per- , formance thereof. So, in the. contract at bar, three methods of laying a noiseless pavement are offered in competition. As to each of these three methods there is < provided the detailed specifications'which have been accepted as the standard specifications for producing the best results in that kind of work. How would.it profit the city to secure a competition upon a general specification and not be . able to secure a proper pavement when it came to be laid? This result is certainly of as much importance as securing competition. In my view of the law, as it is conceded that patented pavements may be laid, the only possible way of securing a competition into which a patented pavement can enter is to provide, as was done in the case at bar, for certain classes, certain kinds, certain character of work

* Laws of 1901, chap. 4661—[Rep.