Davis, P. J.:
The court below denied the motion for a peremptory mandamms in this case, for the reasons assigned in the following opinion :
“ Lawrence, J. The point.upon which this case turns is as to the right of the commissioner of public works, after once having consented to the substitution of a surety in the place of a surety originally offered by the bidder, to withdraw such consent before the comptroller has approved of the sureties.
“ In this case, after a peremptory mamdamms had issued put of the Court of Common Pleas, directing the comptroller to pass upon the adequacy of the relator’s sureties, it was found that both of the original sureties were not adequate, and, thereupon, with the consent of the commissioner of public works, Messrs. Waterbury and Deering were proposed as new sureties by the relator, and this application was then made by the relator for a writ of peremptory ma/ndam/us commanding the comptroller to approve of the adequacy and sufficiency of such sureties, and the commissioner of public works to enter into and execute the contract for regulating and grading, etc., Madison avenue, which is mentioned in the affidavit. By the order to show cause, the comptroller was enjoined, in the meantime, from refusing to approve of the sureties and from transmitting the agreement of the sureties to the commissioner of public works without his approval. By a subsequent order of the court, the commissioner of public works was directed to take no action or proceeding in relation to said contract, it being alleged that the comptroller, in order to avoid the injunction, had requested the commissioner of public works to erase from the relator’s bid certain words, and to withdraw the bid or proposal of the relator from the comptroller’s possession.
[59]*59“ By an order afterwards made, on the application of the commissioner of public works, through the counsel to the corporation, the relator was directed to show cause why the injunction against the said commissioner should not be vacated. The counsel of the relator contends that after the commissioner of public works has once assented to the change or substitution of sureties he cannot withdraw his assent. I am unable to accede to this view; and I do not think that the cases which counsel has cited sustain his position. The power to consent to such substitution is conferred by the twenty-seventh section, article 2, of chapter 7 of the Revised Ordinances of 1866, which section prescribed: £ That, every contract for supplies or work, etc., * * * shall be accompanied by a bond in the penalty mentioned in the proposals therefor, executed by the persons consenting to become bound as sureties, as provided in section 20, or by such other persons as shall be substituted therefor, with the consent of the heads of departments making such contracts,’ etc.
“No obligation is imposed upon the head of department to give such consent.
“ At the time the relator applied to the commissioner of public works for leave to substitute Messrs. Waterbury and Peering for Messrs. Gilfoyle and Prior, although he was the lowest bidder, he was not the lowest bidder “ who had given security for the faithful performance of his contract in the manner prescribed and required by the ordinance.” Nor had the adequacy and sufficiency of his surety been approved by the comptroller. The relator was, therefore, in default; whether through his own fault or through that of the comptroller, it is not necessary now to determine.'
“ Conceding all that the learned counsel for the relator, in his most elaborate and instructive brief, claims as to the rights of the lowest bidder, whether under the charter of 1873, or the act of 1861, it is clear that the lowest bidder must give adequate security, and that such adequate security must be passed upon and approved by the comptroller before the lowest bidder becomes absolutely and of right entitled to the contract. Now, in this case it appears that after the commissioner of public works has consented to the substitution of the new sureties in the place and stead of the old sureties, and before the approval of the adequacy and sufficiency of the new sureties by the [60]*60comptroller, the commissioner became desirous of reconsidering his approval of, or consent to such substitution, and, in his affidavit, he states that the reason why he desired so to reconsider his approval was because the work can now be done for $60,000, whereas, if the relator be allowed to execute the same under his bid, the expenditure, exclusive of surveyor’s and engineer’s fees, will amount to $120,000. The consent for the substitution of new sureties for those originally proposed, is an act of grace on the part of the head of the department. It rests upon no new consideration, and it appears to me that if the head of the department becomes satisfied before the act is consummated by the comptroller’s approval of the sureties, that he has acted unwisely or unadvisedly, it should be, and it is, within his power to withdraw his consent. To illustrate : If the position of the learned counsel for the relator is correct, if the commissioner of public works had ascertained within five minutes after he had consented to the substitution of the sureties that they were worthless, he could not have revoked his consent, and the city would have been obliged to enter into the contract unless the comptroller discovered the insolvency or irresponsibility of the sureties and refused to approve of them. I cannot conceive that such is a fair and reasonable interpretation of the provisions of the ordinance.
“ It has been before observed that the cases cited by the learned counsel for the relator, do not apj>ear to sustain the counsel’s position, that the commissioner of public works had no right to recall his consent when once given. Upon examination of those cases, I am of the opinion that it will be found that they were all cases in which third parties, on the faith of the act sought to be undone or revoked, had entered into obligations and agreements into which they otherwise would not have entered.
“ There the principle of estoppel applies, but in this case the relator contracted no obligations, and he entered into no new contract on the faith of the consent of the commissioner of public works, to the substitution of the new sureties. He had made his bid several years before and his sureties had been determined by the comptroller to be inadequate. When he came before the commissioner of public works asking that new and other sureties might be accepted, he offered no new consideration, and none passed from him to the city.
[61]*61“ TJpon principle, therefore, and upon the authorities cited, as I understand, I am of the opinion that until the comptroller has actually passed upon the sufficiency of the new sureties, the commissioner of public works was authorized to recall and revoke his consent to the substitution of sureties, as I cannot see that the plaintiff, by such revocation, will lose'any legal rights to which he was entitled at the time the consent was obtained, and as it is apparent that much injury may ensue to those who would be assessed for the work if executed, I reach the conclusion that the order enjoining the commissioner should be vacated.
“ The motion for a mandamus
Free access — add to your briefcase to read the full text and ask questions with AI
Davis, P. J.:
The court below denied the motion for a peremptory mandamms in this case, for the reasons assigned in the following opinion :
“ Lawrence, J. The point.upon which this case turns is as to the right of the commissioner of public works, after once having consented to the substitution of a surety in the place of a surety originally offered by the bidder, to withdraw such consent before the comptroller has approved of the sureties.
“ In this case, after a peremptory mamdamms had issued put of the Court of Common Pleas, directing the comptroller to pass upon the adequacy of the relator’s sureties, it was found that both of the original sureties were not adequate, and, thereupon, with the consent of the commissioner of public works, Messrs. Waterbury and Deering were proposed as new sureties by the relator, and this application was then made by the relator for a writ of peremptory ma/ndam/us commanding the comptroller to approve of the adequacy and sufficiency of such sureties, and the commissioner of public works to enter into and execute the contract for regulating and grading, etc., Madison avenue, which is mentioned in the affidavit. By the order to show cause, the comptroller was enjoined, in the meantime, from refusing to approve of the sureties and from transmitting the agreement of the sureties to the commissioner of public works without his approval. By a subsequent order of the court, the commissioner of public works was directed to take no action or proceeding in relation to said contract, it being alleged that the comptroller, in order to avoid the injunction, had requested the commissioner of public works to erase from the relator’s bid certain words, and to withdraw the bid or proposal of the relator from the comptroller’s possession.
[59]*59“ By an order afterwards made, on the application of the commissioner of public works, through the counsel to the corporation, the relator was directed to show cause why the injunction against the said commissioner should not be vacated. The counsel of the relator contends that after the commissioner of public works has once assented to the change or substitution of sureties he cannot withdraw his assent. I am unable to accede to this view; and I do not think that the cases which counsel has cited sustain his position. The power to consent to such substitution is conferred by the twenty-seventh section, article 2, of chapter 7 of the Revised Ordinances of 1866, which section prescribed: £ That, every contract for supplies or work, etc., * * * shall be accompanied by a bond in the penalty mentioned in the proposals therefor, executed by the persons consenting to become bound as sureties, as provided in section 20, or by such other persons as shall be substituted therefor, with the consent of the heads of departments making such contracts,’ etc.
“No obligation is imposed upon the head of department to give such consent.
“ At the time the relator applied to the commissioner of public works for leave to substitute Messrs. Waterbury and Peering for Messrs. Gilfoyle and Prior, although he was the lowest bidder, he was not the lowest bidder “ who had given security for the faithful performance of his contract in the manner prescribed and required by the ordinance.” Nor had the adequacy and sufficiency of his surety been approved by the comptroller. The relator was, therefore, in default; whether through his own fault or through that of the comptroller, it is not necessary now to determine.'
“ Conceding all that the learned counsel for the relator, in his most elaborate and instructive brief, claims as to the rights of the lowest bidder, whether under the charter of 1873, or the act of 1861, it is clear that the lowest bidder must give adequate security, and that such adequate security must be passed upon and approved by the comptroller before the lowest bidder becomes absolutely and of right entitled to the contract. Now, in this case it appears that after the commissioner of public works has consented to the substitution of the new sureties in the place and stead of the old sureties, and before the approval of the adequacy and sufficiency of the new sureties by the [60]*60comptroller, the commissioner became desirous of reconsidering his approval of, or consent to such substitution, and, in his affidavit, he states that the reason why he desired so to reconsider his approval was because the work can now be done for $60,000, whereas, if the relator be allowed to execute the same under his bid, the expenditure, exclusive of surveyor’s and engineer’s fees, will amount to $120,000. The consent for the substitution of new sureties for those originally proposed, is an act of grace on the part of the head of the department. It rests upon no new consideration, and it appears to me that if the head of the department becomes satisfied before the act is consummated by the comptroller’s approval of the sureties, that he has acted unwisely or unadvisedly, it should be, and it is, within his power to withdraw his consent. To illustrate : If the position of the learned counsel for the relator is correct, if the commissioner of public works had ascertained within five minutes after he had consented to the substitution of the sureties that they were worthless, he could not have revoked his consent, and the city would have been obliged to enter into the contract unless the comptroller discovered the insolvency or irresponsibility of the sureties and refused to approve of them. I cannot conceive that such is a fair and reasonable interpretation of the provisions of the ordinance.
“ It has been before observed that the cases cited by the learned counsel for the relator, do not apj>ear to sustain the counsel’s position, that the commissioner of public works had no right to recall his consent when once given. Upon examination of those cases, I am of the opinion that it will be found that they were all cases in which third parties, on the faith of the act sought to be undone or revoked, had entered into obligations and agreements into which they otherwise would not have entered.
“ There the principle of estoppel applies, but in this case the relator contracted no obligations, and he entered into no new contract on the faith of the consent of the commissioner of public works, to the substitution of the new sureties. He had made his bid several years before and his sureties had been determined by the comptroller to be inadequate. When he came before the commissioner of public works asking that new and other sureties might be accepted, he offered no new consideration, and none passed from him to the city.
[61]*61“ TJpon principle, therefore, and upon the authorities cited, as I understand, I am of the opinion that until the comptroller has actually passed upon the sufficiency of the new sureties, the commissioner of public works was authorized to recall and revoke his consent to the substitution of sureties, as I cannot see that the plaintiff, by such revocation, will lose'any legal rights to which he was entitled at the time the consent was obtained, and as it is apparent that much injury may ensue to those who would be assessed for the work if executed, I reach the conclusion that the order enjoining the commissioner should be vacated.
“ The motion for a mandamus might, perhaps, be properly denied on the ground that the granting of the writ is much within the discretion of the court, and that regarding the expense to which property owners might be subjected by the execution of the contract in question, it would be a wise exercise of the discretion of the court to refuse the writ and put the relator to his action against the corporation for damages. I prefer, however, to rest this case on the grounds heretofore stated; and as it is apparent that the commissioner desires to reconsider his consent, it follows:
“ First. That the order restraining him from such reconsideration should be vacated.
“ Second. That no case is made out for granting a mandamus, either to compel the comptroller to approve of the new sureties, or the commissioner of public works to execute the contract.
“ Motion is therefore denied, with ten dollars costs.”
We adopt this opinion as our own, so far as relates to the questions upon which the court below -disposed of the motion.
The writ of mandamus is not a writ of right. It is one over which the court, in the exercise of sound discretion, has full control. In addition to the grounds upon which the learned judge below based his decision, we are of opinion that the writ in this case should be denied, as a proper exercise of judicial discretion: First. Because the relator, if entitled to the contract, has another remedy to recover the damages actually sustained by him by the refusal of the city to enter into the contract; and the measure of the damages which would compensate him in such case would be far less injurious to the city, and especially to the persons on whom the expense of the work would largely be thrown, if the contract [62]*62were entered into, than to proceed under the changed circumstances to do the work at the heavy prices stipulated in his proposal. The relator should be turned over to his action for.damages.
Second. Because it is extremely doubtful whether there is not such a departure from the ordinance in making up the specifications set forth in the contract, as to render the action of the commissioner of public works unauthorized and illegal. An item, the expense of which cannot of course be ascertained on the face of the papers before us, is included in the estimates and proposal which the ordinance does not embrace and for which the city had no right to contract. This question was not, however, suggested below, nor has it been discussed here, but it arises very plainly upon the papers before us. Certainly no court should be called upon to issue a peremptory mcmdamms, to compel the execution of a contract which, on its face, exceeds the authority conferred by the ordinance of the common council.
We are of opinion that the order of the court below should be affirmed, with ten dollars costs besides disbursements.
Daniels, J., concurred.
Present — Davis, P. L, Beaky and Daniels, JJ
Order affirmed, with ten dollars costs, besides disbursements.