Larned v. City of Syracuse

FOLLETT, J. This action was begun October 25,1894, by a taxpayer of the city of Syracuse to restrain the defendants from contracting for paving that portion of Plum street between the north line of Park avenue and the south line of Belden avenue, except the intersection of West Genesee street. The city of Syracuse, its mayor and clerk, joined in an answer; and the defendants Eugene A. Homer, James M. Homer, and Francis E. Van Camp (constituting the firm of Homer & Co.) answered together. This case arose under the sections of the charter of the city of Syracuse quoted in Smith v. City of Syracuse (Sup.) 44 N. Y. Supp. 852. The petition by which these proceedings were initiated asked the common council— “To order the paving of Plum St. from the north line of Park Ave. to the south line of Belden Ave., except the intersection of West Genesee St., with vitrified paving brick, for the driveway or surface, manufactured by the New York Brick & Paving Company, of Syracuse, N. Y.: provided, that said brick be furnished by the said N. Y. B. & P. Co. to the contractor or contractors for said work at a price not to exceed $11.00 per thousand at the brick company works. If not furnished by said Brick Co. at said price, or if, for any reason, said company cannot or will not furnish said brick, then with any vitrified paving brick equal in quality to the best quality of paving brick manufactured by said N. Y. Brick & Paving Co.; upon condition, however, the street be narrowed to 28 feet between the curbs.” The resolution of the common council ordering the paving followed the terms of the petition, and so did the advertisement for proposals. The proposals followed the language of the petition and resolution, and the contract, which was signed by Homer & Co., the accepted bidders, contained the same provision in respect to the kind of brick to be used, and the price to be paid therefor. The learned special term held' that the proceedings were void because they restricted the contractors to the purchase of brick of a single corporation, provided it would furnish them at not exceeding $11 per 1,000, thereby preventing free competition as provided by the charter of the city of Syracuse. In this judgment we concur. By the terms of the petition, resolution of the common council, notice to contractors, specifications filed, and contract, it was provided, in effect, that the brick should be purchased of the New York Brick & Paving Company, provided it would furnish them for not more than $11 per 1,000, though the same brick, or brick equal in quality, might, perhaps, have been purchased! of other dealers at a less sum. The provision in this case is quite different from the one in Smith’s Case, which did not provide that the brick should be purchased of a particular firm, but that the brick used should be manufactured by the New York Brick & Paving Company'; but it did not provide that they should be purchased of that company, provided they could be purchased at a price fixed. The general manager of the New York [862] Brick & Paving Company, of Syracuse, N. Y., testified! that $11 per 1.000 was the regular price for bricks when sold in quantities of 100.000 or more, and that it required 200,000 to do the work called for. The effect of these proceedings was to require the contractor to pay the New York Brick & Paving Company its regular price for paving bricks. The judgment should be affirmed, with costs, upon the opinion of the special term. All concur.