Williams Press, Inc. v. State

45 A.D.2d 397, 357 N.Y.S.2d 920, 1974 N.Y. App. Div. LEXIS 4332

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1974
• Docket: Claim No. 55203
• Status: Published

Opinions

Staley, Jr., J. P.

Claimant, a printing company, for many years prior to 1960 and for the years 1961 through 1971, was the successful bidder on the State contract for legislative printing. Prior to February 14,1972, claimant had submitted vouchers totaling $104,295.79 to the State for legislative printing performed under its legislative printing contract for 1971. On February 14, 1972, the State notified claimant that it was offsetting a credit of $87,701.85 against moneys due claimant under its 1971 contract for overcharges paid for printing amended budget bills during, the period from 1965 through 1970. The only issue before the Court of Claims and on this appeal is the construction of the contract relating to amended budget bills during the 1965 through 1970 period.

The specifications issued by the State for its legislative printing contract for the years in question as it related to budget bills .are evidenced by the 1961 bid as follows:

(h) BUDGET BILLS UNIT PER PRICE TOTAL

2,000 Copies each Senate and Assembly with necessary

caption changes 1182 Pages $27.61 Page $32,635.02

Amended Budget Bills —

Composition 5638 Lines .98 Line 5,525.24

Remake-Up 494 Pages 4.53 Page 2,237.82

2,000 Copies each Senate and Assembly with necessary

caption changes 3138 Pages 13.98 Page 43,869.24

The above bid was based on the form of specifications adopted for the 1961 contract and used for subsequent years which contained a change from the former specifications used in 1960 and previous years. It is this change which resulted in the dispute between claimant and the State relative to the correct amount due claimant for printing amended budget bills for the 1965-1970 period.

The form of specifications for .budget bills for the 1960 contract was as follows:

ESTIMATED NUMBER OF PAGES TOTAL

905 Pages 2,000 copies for Senate

2.000 copies for Assembly with necessary caption changes

4.000 copies complete at $15.60 per page...............$14,118.00

amended budget bills if required with necessary changes,,

* # »

composition-estimated number line changes total .

320 lines at $.55 per line......................................$ 176.00

25 pages re-madeup at $2.55 per page............................ 63.75

ALL OTHER COSTS-ESTIMATED NUIOER OF PAGES

905 pages 2,000 copies for Senate

2,000 copies for Assembly with necessary caption changes

2.000 copies Senate at $7.90 per page..................$ 7,149.50

2.000 copies Assembly at $7.90 per page................$ 7,149.50

Total Bid for Item 10-A Budget Bills $28,656.75

The material changes in form thus were the elimination of a line for .4,000 copies complete at a price per page for the original budget bill and the use of one line for 2,000 copies each for Senate and Assembly at a price per page, and the elimination in the bid for amended budget bills of the separate items of 2,000 copies for the 'Senate at a price per page, and 2,000 copies for the Assembly at a price per page and the use of one line for 2,000 each Senate and Assembly at a price per page.

The testimony reveals that original budget bills were identical, but that amended budget bills might differ since amendments made in one house were not always the same as amendments made in the other house. Under the 19.61 contract, when a budget bill was amended, the printing for the number of pages amended in the Senate was charged to the Senate at the price per page ¡bid, and the printing for the number of pages amended in the Assembly was charged to the Assembly at the price per page ¡bid. Claimant continued this practice for the years of 1965-1970 interpreting the form of the bid for those years for printing amended budget bills on the same basis as it had adopted under the form of the bid contained in the 1960 contract 'and years prior thereto.

The basis for the State’s offset is its interpretation that since the form of specification for original budget bills and amended budget bills for the years in question is the same, claimant is limited to the price bid per page for amended budget bills, and is entitled to be paid at that price only once and not at that price by both the Senate and the Assembly. The State, therefore, claims there has been double billing for printing amended budget bills for 1965-1970, and that the offset charged is valid. The Court of Claims sustained the State’s contention.

Claimant’s main contentions are that the change in specifications for amended budget bills from two lines in 1960 to one line in 1961 created an ambiguity for that year and subsequent years; that claimant followed the same bidding pattern for every year from 1961 through 1971 in reliance upon the Comptroller’s approval of its vouchers, and that a practical construction of the contracts for the {1965-1970 period would result in a finding that the bids .were in exact conformity with bids for other bills; that in view of the payments after audit for a six-year' period, a fair review of the practice resulting in the charge of offsets should have been limited to a one-year period; and that the State’s offsets violated the constitutional requirements of procedural due process.

The wording of the specifications in the 1961 ¡bid proposal was the same for original budget bills and .amended .budget bills. Claimant clearly understood that the bid for original budget bills called for 4,000 copies at a price per page, and it, therefore, should, have understood that when identical language was used for amended .budget bills, the same result would be reached calling for 4,000 copies at the price per page submitted in its bid. If the bid specifications were clear and unambiguous as to the original budget bills, they were likewise clear and unambiguous as to amended budget bills. We agree with the Court of Claims where it held that:

“ The detailed specifications in each contract were clear and unequivocal and the actual bid which ripened into a contract was clear and without ambiguity. The bid form was the same in each of the contracts (Exhibits f- A ’—‘ F ’, inclusive) for the period in question. For example, the bid form and bid for 1965 read as follows: (Exhibit ‘A’)

‘ BUDGET BILLS Unit Per Total

2,000 Copies each Senate and Assembly with necessary caption changes

1,475 Pages 18.97 Page 27,980.75

Amended Budget

Bills

Composition

632 Lines .67 Line 423.44

‘ Remakeup

87 Pages 3.11 Page 270.57

2,000 copies each Senate and Assembly with necessary caption changes

1,163 Pages 9.61 Page 11,176.43

Total $39,851.19 ’

(Underlining added.) The underlined .section is the area in dispute. Claimant had bid the price of $9.61 for an estimated requirement of 1,163 pages; or, a total bid price of $11,176.43. Once this bid was accepted, as it was, it became the contract between the parties. If, as claimant contended, it intended to separately voucher the State for 2,000 copies to the Senate at $9.61 a page and 2,000 copies to the Assembly at $9.61 a page, it should have either so stated in the bid form or it should have doubled the final bid amount from $11,176.43 to $22,352.86. It did not do so and, in our opinion, it was bound to charge only $9.61 a page for 4,000 copies of1 cosponsored amended budget bills.”

Claimant further contends that the State’s failure to object to its billing practices and payment of vouchers, as submitted, over a period of years, was, in effect, a ratification of the payments and that the custom and usage entered into by both parties in years prior to 1961 should result in a practical construction of the contracts for the 1965-1970 period favorable to claimant. However, the contracts did not authorize the charges as vouchered by claimant, and they were thus not in accordance with the contract and their payment" became illegal and invalid. Errors made by State employees cannot bind the State or prevent recoupment of unauthorized payments. (Wells v. Johnston, 171 N. Y. 324; Board of Supervisors of Richmond County v. Ellis, 59 N. Y. 620; People v. Journal Co., 158 App. Div. 326, affd. 213 N. Y. 1.)

In People v. Journal Co. (supra, pp. 7-8), Judge Caudozo, writing for the Court of Appeals, stated as follows: ‘ ‘ We cannot sustain the defendant’s argument that the approval of its bills by the comptroller is an audit which bars the state from the recovery of the illegal payments. * * * The public funds may not ibe gratuitously distributed at the will of any officer. (Village of Ft. Edward v. Fish, 156 N. Y. 363, 374.) It might as well be urged that a second payment of the same bill would be protected if a comptroller, knowing that it was a second payment, determined to allow it. In the present case, both the public officers who approved the bills and the defendant which presented them, acted in good faith. None the less, the conceded facts demonstrate that the double payment was illegal, and no audit by any public officer could make it anything else.”

Since the contracts for 1965-1970 were unambiguous, the acts nf the parties relating to their construction, if erroneous, cannot change the terms of the contract or change an illegal payment into a legal one. The record is very convincing to the effect that claimant’s intention was to submit its bids for 1965-1970 on the same basis and to achieve the same payments for its services for printing amended budget bills as it received under the form it bid in the 1960 contract. However, to obtain that result, it should have bid double the amount for the price per page for printing amended budget bills for the 1965-1970 period. The fact is that it did not do so, and it is, therefore, bound by its bid and the contract entered into by the parties.

Claimant lastly contends the .State’s offset practice .violated the constitutional requirements of procedural due process, and that if the Comptroller believed that claimant had been overpaid from 1965 through 1970, the proper remedy .was to bring an action in the Supreme Court. Claimant argues that the Comptroller’s action has forced claimant to file its claim in the Court of 'Claims which has deprived it of its right to a jury trial, shifted the burden of proof from the Comptroller to claimant, and prevented claimant from pleading a cause of action for reformation, based on mutual mistake which could not be pleaded in the 'Court of Claims which has no equity jurisdiction.

The action of the Comptroller in offsetting the overpayments against current bills for services performed is certainly reasonable and legal. The right to offset in this manner has been approved by the courts. (United States v. Munsey Trust Co., 332 U. S. 234; Capitol Distrs. Corp. v. Kent’s Rest., 173 Misc. 827.)

In United States v. Munsey Trust Co. (supra, pp. 239-240), United States Supreme Court declared that ‘ ‘ federal statute gives jurisdiction to the Court of Claims to hear and determine ‘ All set-offs, counterclaims * * * whether liquidated or unliquidated, or other demands whatsoever on the part of the Government * * * against any claimant against the Government in said court. ’ * * # This power given to the Court of Claims tp strike a balance between the debts and credits of the government, by logical implication gives power to the Comptroller General to do the same, subject to review by that court.”

Similarly, in New York State offsets to State claims are within the Comptroller’s authority as was clearly stated by Justice Bergae in Capitol Distrs. Corp. v. Kent’s Rest, (supra, p. 828): “ Since the ¡Comptroller acts for the State in its fiscal affairs generally, and since the payment of any money under the control of the State is void unless approved by his audit * * * it would seem that he has the right to offset any valid claim of the State against one to whom money under his control is due from the State.”

The Comptroller has beén authorized by the Legislature to “ examine, audit and settle the accounts of all public officers and other persons indebted to the state, and certify the amount and balance due thereon.” (State Finance Law, § 8, subd. 3.) If this power could not be employed as the Comptroller has done in this case, it would seem that whenever a contract dispute arose the State would be forced to pay over all of what claimant demanded and then sue for recovery of disputed amounts. This could not logically have been the intent of the Legislature in empowering the Comptroller to settle the State’s accounts and in empowering the Court of Claims to entertain counterclaims.

This action is based on a contract with the State and claimant seeks to recover moneys due under its contracts which the State, alleging overpayments, has withheld from claimant. The claim is against the State and may be maintained only in accordance with the consent of the State in the Court of Claims. Sections 8, 9 and 12 of the Court of Claims Act confer very broad jurisdiction upon the Court of Claims to hear and determine all claims against the State, and this ibroad grant of power necessarily implies the right to afford equitable relief where the same may be incidental, to a-claim for a money judgment. (Cf. Psaty v. Duryea, 282 App. J)iv. 94.)

The judgment should be affirmed, with costs.