DOLAN v. THE MAYOR, &c. OF NEW YORK

DOLAN against THE MAYOR, &c. OF NEW YORK. Supreme Court, First District; At Chambers, August, 1868. Injunction.—Contracts foe Corporation Work; Tlio common council of Now York may be enjoined, at the suit of an individual owner, from entering into a contract to lay a pavement which is patented, and therefore not open to competition, where the work is to be done at the expense of the individual owners of property upon the street. Motion to continue an injunction. This action was brought by Peter Dolan to enjoin the Mayor and Commonalty of New York and others from executing a contract for the paving of Seventh-avenue from Fourteenth-street to Fifty-ninth-street, with what is called the Stafford pavement, authorized under a resolution of the common council', passed February 18, 1868. A temporary injunction was granted by Judge Ingeaham, and the case now came before the court on a motion to continue the preliminary injunction. The principal grounds urged by the plaintiff were, that the right to lay the pavement referred to was held by a corporation under letters patent of the United States, and that it was, therefore, not open to competition, as provided by the statute requiring contracts for the city to be made subject to sealed tenders or proposals for the performance of the work ; that the pavement was not desired, but was opposed by the bona fide tax-payers of Seventh-avenue, and that the persons who subscribed their names to the petition for such pavement were only temporary residents on that thoroughfare, who would not be affected by the assessment $ that the laying of the pavement would involve an outlay of $400,000, or thereabouts, and would be a fraud upon the tax-payers; that the resolution authorizing the contract was procured to be passed by secret agents of the Stafford Pavement Company, and hi consideration of certain pecuniary rewards agreed to be paid to the members, or some of the members, of the common council. Plaintiff also contended that the resolution referred to was not duly passed by the common council. [MAJORITY — Sutherland, J.] Sutherland, J. The right to use the Stafford pavement blocks in paving streets is patented, and is held and owned exclusively by a company or corporation. Of course, there would be no use in advertising for bids or proposals for doing the work under the ordinance in question, for there could be no competition. According to the reasoning in the case of Dean v. Charlton (Am. Law Reg., July, 1868, 564), it follows, that the common council could not authorize tho work to be done with or without the form of advertising for proposals, considering § 38 of the charter of 1857, and considering that the work is to be done at the expense of the lot-owners. The distinction in Dean v. Charlton, between it and Harlem Gaslight Co. v. The Mayor, &c. (33 N. Y., 309), appears to me to be reasonable, and probably maintainable. , I think, therefore, the injunction should be continued-on this ground, without passing upon any other question in the case, with $10 costs to the plaintiff, to abide the event of the action.