Brady v. . the Mayor, C., of the City of New York , 18 How. Pr. 343 ( 1859 )

Denio, J.

The 12th section of the act of 1853, amending the charter of the city of New York, established a system by which all work to be performed for the city which should cost more than $250 should be subjected to public competition, and should be given out to the party who would undertake to do it for the smallest amount of money. It was based upon motives of public economy, and originated, perhaps, in some degree of distrust of the officers to whom the duty of making contracts for the public service was committed. If executed according to its intention, it will preclude favoritism and jobbing, and such was its obvious purpose. It does not require any argument to show that a contract made in vio lation of its requirements is null and void. We are, therefore, to determine whether the contract under consideration was made in furtherance of this policy, or in hostility to it; or in other words, whether it was in conformity with the law or in violation of it. The work to be performed in Eighty-third street was in part the removing of a quantity of fixed rock; the rest was the laying of flagging or curb-stone. The rock excavation, according to the plaintiff’s claim, was more than seven-eighths of the whole expense, and at any rate it was a substantial and important part of the work. A form of inviting proposals and of awarding a contract was adopted, but it was so arranged that there was not only not to be any competition as to the rock excavation, but that was to be paid for at such price as the bidder chose to insert in his proposal, provided that as to the other comparatively inconsiderable portion of the work he bid lower than any one else. A form of proposal, which should have confined the competition in terms to the flagging and the curb and gutter work, and should have left the rock to be paid for by day’s work, or at what it was worth, would have been fair upon its face, and would not have peculiarly exposed, the city to imposition; and if it were practically impossible to subject the removing of the rock to competition, bicaunc the quantity could not be sufficiently ascertained, such y, i'. ei bod of arranging the proposals might not have been ob- : „..uible. But it is not found by the referee, and was not proveí on the trial, that there was an impossibility, or even any difficulty, in stating the quantity of rock excavation with sufficient certainty. Indeed, taking his conclusions of fact and law together, the fair construction of the finding is that it could bo determined with such approximate accuracy as would be essential to subject it to the competition required by the statute. It is found positively, as a matter of fact, that by the plan adopted the lowest bidder could not be ascertained; and the conclusion of law stated is, that it was the duty of the street commissioner, under the charter and ordinances, to have stated in his estimate or proposals the amount of rock excavation which would probably be required in doing the work in ques tion, and to have included it among the data by which his bids were to be tested. Unless the referee believed upon the evidence that it was susceptible of ascertainment, to such a degree of certainty as to enable it to be stated among the data for testing the bids, he could not have come to these conclusions. But I apprehend that we may now say, from the knowledge of such matters which every man may be supposed to have, that the quantity could be ascertained with a sufficient approximation to accuracy to expose it to a fair competition. The distance in length was only about two thousand feet. It appears by the contract that there was a profile in the street commissioner’s office, which necessarily showed the conformation of the ground and the grade of the street. The problem was to ascertain whether rock existed in that portion of it which was above the grade, and to determine, by making so many incisions of the soil as might be necessary, its thickness from the top of the rock to the grade, and then to ascertain its quantity by calculation. Uo doubt it would require time, attention, and care; but the same may be said of most acts which are really useful. The city had an officer in its pay (the surveyor), within whose functions such a duty would naturally fall. An ordinance of the common council required the street commissioner to state in his advertisement for bids the nature and extent, as near as possible, of the work required. I cannot persuade myself that this was a case in which it was impossible, or really difficult, to ascertain and state in the invitation for bids that the work in question would require the blasting and removal of a quantity of fixed rock, and to give an estimate of the number of cubic yards sufficiently exact to enable persons desirous of competing to propose with prudence and safety for each iteni of the work. If this had been done, and if the result of all the offers had been taken into the account in selecting the lowest bidder, a contract given to that person would have been awarded according to the statute. The successful bidder was here arrived at by laying out of the account the bulk of the work in point of labor and expense, and testing the offers by the price proposed for an inconsiderable-portion of it. The plain tiff claims under the act of a public officer whose duties in this respect are prescribed by law. If in doing it he violated, as I think he did, the plain mandates of that law, the act was illegal, and the plaintiff can claim nothing under it.

The plaintiff offered to show, by the production of the original bids, that the plaintiff was not the lowest bidder according to the data given in the street commissioner’s proposals, and the offer was rejected, unless proof of fraudulent collusion was also offered. The ruling was, I am inclined to think, erroneous. If it is not so, a contract might be given to the highest instead of the lowest bidder, and it would be of equal validity as though properly given. If it should be said that the contractor might not be cognizant of the illegality, the answer is, that he is entitled to be present when the bids are opened; and it is not unreasonable that he should see to it that he is by law entitled to the contract which is given to him. _ But it is not necessary to decide this point, and I prefer to place my opinion on the ground that the proposals of the street commissioner were illegal upon their face, in declaring that the successful bidder would be ascertained by a test which left out of view the principal part of the work.

It is not necessary to deny that one who has Iona fide performed labor, under a contract which is void from a failure to comply with the statutes, may maintain an action against the city to recover a quantum meruit, where the work has been accepted by the city, and has gone into use for public purposes. The plaintiff objected to evidence as to the price of rock excavation, and it was excluded at his instance. If he was entitled to that measure of compensation, there should be a new trial in order to enable its amount to be ascertained.

The action of the common council in confirming the assessment roll cannot aid the plaintiff, upon any principle with which I am acquainted. That body could not make the contract originally; and if a lawful one has not been made by the officer to whom that duty was committed by law, it cannot be helped out by any resolution of the council. The action has'no force as an estoppel. It was between other par ties, and did not affect the plaintiff in any way. It proves, perhaps, that the common council then supposed the city liable for this claim; but they have since decided to contest it, and our duty is to pass upon the defence which they have presented.

T am in favor of affirming the judgment of the Supreme Court.

Allen, J., delivered an opinion to the same effect; Selden, Gray and Grover, Js., concurred.

Judgment absolute for the defendant.