In re Regulating & Grading Eightieth Street

By the court, Barnard J.

Assuming that the case pre- , sented by the petitioner is one, which if true entitles the petitioner to the relief afforded by the act of 1858, it is not sustained by the evidence. The charge is that the contract was obtained by Slattery by a fraudulent conspiracy and. collusion -with the then street commissioner. That by agreement with Slattery the street commissioner estimated the earth excavation at a much less amount and the rock excavation at a much greater amount than it really was, so that Slattery by bidding a large price for earth excavation and nothing for rock would seem .to be the lowest bidder, while in fact he would be the highest bidder on the contract. The proof shows that the street commissioner took the initiatory steps according to law.

The notice was duly published and estimated the probable amounts of rock and earth excavation, and invited bids for each kind of excavation and requiring that an affidavit from persons bidding should accompany these bids, that the bid was made without collusion or fraud, and that no member of the city government was directly or indirectly interested therein. Slattery’s bid on this bidding was the lowest bid. according to the estimates of the street commissioner, and the contract was duly and legally awarded to him. There is no proof whatever showing any concert between the street commisioner and Slattery. The result shows more earth and less rock than the estimates. Slattery was the contractor of' Seventy-ninth street, which had been just completed, and that , work established that the earth largely exceeded the rock excavation upon Seventy-fifth street, and from this evidence alone the petitioner proves the fraud.. It is insufficient to prove fraud. The question is not whether we are inclined to believe or suspect, or whether it is probable a fraud has been committed or may have been committed, but are these parties provábly guilty by the evir dence? Eightieth street showed nearly twice the amount of rock which Seventy-ninth street did. Doubtless no contractor bid without examination of the proposed work, and they could judge of the probable correctness of the estimates. Slattery may have been guided in his bid by the results of Seventy-ninth street.

The street commissioner is not shown to have had any concert with Slattery or any other contractor, nor is the contract shown to have been procured by fraud. If there were facts, which it is easy to believe there were, showing a guilty combination between the contractor and the street commissioner, the act of 1861 legalizes the assessment. The work cost the city the amount of money for which the assessment is made. The contract with Slattery is confirmed. An assessment is authorized and the city is required to pay Slattery the money due “upon said contract.”

The power of the legislature to pass this act is undoubted (Brewster agt. The City of Syracuse, 19 N. Y. 116).

The act embraces but one subject.

Order affirmed with costs.