Boro-wide School Transportation Corp. v. Board of Education

New York Supreme Court

Boro-wide School Transportation Corp. v. Board of Education

162 Misc. 1, 293 N.Y.S. 553, 1937 N.Y. Misc. LEXIS 1521

CourtNew York Supreme Court

DecidedFebruary 1, 1937

StatusPublished

Cited by1 cases

This text of 162 Misc. 1 (Boro-wide School Transportation Corp. v. Board of Education) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boro-wide School Transportation Corp. v. Board of Education, 162 Misc. 1, 293 N.Y.S. 553, 1937 N.Y. Misc. LEXIS 1521 (N.Y. Super. Ct. 1937).

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Opinion

Cotillo, J.

This is a motion to dismiss the complaint by one who it may be assumed was the lowest responsible bidder on an invitation for bids for transportation of school children. On the day the corporation counsel advised the acceptance of plaintiff’s bid, a rival, Children’s Bus Service, Inc., which was a higher bidder, instituted mandamus proceedings and served a stay of the award. Later the stay was vacated and Children’s Bus Service, Inc., without notice to and knowledge of plaintiff, was permitted to reduce its bid and received the award. This action is brought for damages against the board of education.

[2]*2What was the remedy of the plaintiff áfter the award to its rival? It could not waive this mandamus but it could sue upon proof of violation of statute by defendant, obtain an injunction in its capacity as a taxpayer and probably also in its own capacity. (McQuillin Municipal Corporation [2d ed.], § 1342.) It might institute an action for damages if its bid was accepted but the defendant refused to execute a final contract. Lynch v. Mayor (2 App. Div. 213) and Beckwith v. City of New York (121 id. 462) are authority for this proposition. But here the city had not yet accepted the bid, although to be sure, it was ready to accept. There is no authority for an action where there was no award, formal or informal. There is a dictum in East River Gas Light Co. v. Donnelly (93 N. Y. 557) which discussed the possibility of an action in such a case without definitely expressing an opinion. It may be safely said, therefore, that there is no legal basis for such an action at law. Plaintiff was not without remedy to restrain the arbitrary action of the board and its violation of law in refusing to accept the lowest bid. It failed to take advantage of this remedy, which, while not primarily intended to redress a private wrong, might indirectly have compelled the award to it as the lowest responsible bidder. It is not, under the circumstances, entitled to seek a direct redress for the private wrong to it.

The motion to dismiss the complaint is granted. Settle order.

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Cotillo, J.

This is a motion to dismiss the complaint by one who it may be assumed was the lowest responsible bidder on an invitation for bids for transportation of school children. On the day the corporation counsel advised the acceptance of plaintiff’s bid, a rival, Children’s Bus Service, Inc., which was a higher bidder, instituted mandamus proceedings and served a stay of the award. Later the stay was vacated and Children’s Bus Service, Inc., without notice to and knowledge of plaintiff, was permitted to reduce its bid and received the award. This action is brought for damages against the board of education.

[2]*2What was the remedy of the plaintiff áfter the award to its rival? It could not waive this mandamus but it could sue upon proof of violation of statute by defendant, obtain an injunction in its capacity as a taxpayer and probably also in its own capacity. (McQuillin Municipal Corporation [2d ed.], § 1342.) It might institute an action for damages if its bid was accepted but the defendant refused to execute a final contract. Lynch v. Mayor (2 App. Div. 213) and Beckwith v. City of New York (121 id. 462) are authority for this proposition. But here the city had not yet accepted the bid, although to be sure, it was ready to accept. There is no authority for an action where there was no award, formal or informal. There is a dictum in East River Gas Light Co. v. Donnelly (93 N. Y. 557) which discussed the possibility of an action in such a case without definitely expressing an opinion. It may be safely said, therefore, that there is no legal basis for such an action at law. Plaintiff was not without remedy to restrain the arbitrary action of the board and its violation of law in refusing to accept the lowest bid. It failed to take advantage of this remedy, which, while not primarily intended to redress a private wrong, might indirectly have compelled the award to it as the lowest responsible bidder. It is not, under the circumstances, entitled to seek a direct redress for the private wrong to it.

The motion to dismiss the complaint is granted. Settle order.

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Bluebook (online)

162 Misc. 1, 293 N.Y.S. 553, 1937 N.Y. Misc. LEXIS 1521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boro-wide-school-transportation-corp-v-board-of-education-nysupct-1937.

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