App. Div.] Second Department, December, 1911. The following authorities sustain the position that we have taken, that under the circumstances here disclosed the plaintiff was not doing business within this State: Vaughn Machine Co. v. Lighthouse (64 App. Div. 138); Cummer Lumber Co.* v. Associated Mfrs.' Ins. Co. (67 id. 151); St. Albans Beef Co. v. Aldridge (112 id. 803); Burrowes Co. v. Caplin (127 id. 317); White Furnace Co. v. Miller Transfer Co. (131 id. 559); Penn Collieries Co. v. McKeever (183 N. Y. 98). The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event. JENKS, P. J., THOMAS, WOODWARD and RICH, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES J. LYNCH and THOMAS F. LARKIN, Comprising the Firm of LYNCH & LARKIN, Appellants, v. JAMES T. LENNON, as Mayor of the City of Yonkers; THOMAS F. CURRAN, as Corporation Counsel of the City of Yonkers, and GEORGE T. KELLY, Intervening, Respondents. Second Department, December 28, 1911. Municipal corporations - contract for improvement in second class city-sufficiency of specifications - refusal of municipal authorities to execute contract — rights of lowest bidder mandamus. - There is no failure to comply with the requirement of section 120 of the Second Class Cities' Law providing that, where a municipal contract exceeding $250 in cost is let, the specifications shall "set forth with sufficient detail to inform all persons proposing to bid therefor of the nature of the work to be done and of the materials to be supplied," merely because the specifications for a hospital building contained a provision that if rock were encountered in excavating the contractor must state in his bid the extra cost per cubic yard of removing the same, where the relative cost of removing the rock was insignificant. One who bid for the entire work, asking no extra compensation for the removal of rock, is entitled to the contract as against one whose bid for the structure, although twelve dollars less, was actually the larger bid by reason of the fact that he claimed extra compensation for excavating rock. Second Department, December, 1911. [Vol. 147. Where the lowest bidder on a municipal contract has no remedy at law for the refusal of the municipal authorities to execute a contract which they have drawn up awarding the work to him, he is entitled to a writ of mandamus compelling them to execute it. APPEAL by the relators, James J. Lynch and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of October, 1911. William A. Walsh, for the appellants. Thomas F. Curran, Corporation Counsel, for the respondents James T. Lennon and Thomas F. Curran. James M. Hunt [George W. Elkins with him on the brief], for the respondent George T. Kelly. CARR, J.: This is an appeal from an order of the Special Term, entered in Westchester county, denying the application of the relators for a writ of peremptory mandamus. The respondents Lennon and Curran are respectively the mayor and corporation counsel of the city of Yonkers. This city is governed in accordance with the provisions of chapter 55 of the Laws of 1909 (Consol. Laws, chap. 53), known as the "Second Class Cities Law." By section 55 of this statute it is made the duty of the mayor to execute on behalf of the city all contracts of the city and to affix thereto the city seal. By section 204 of the same statute it is provided that no written contract of the city providing for the payment of $200 or more shall become effective or be acted under until there shall be indorsed thereon by the corporation counsel or an assistant a certificate to the effect that the city officer, board or department which has executed the same on behalf of the city had authority and power to make such contract, and that such contract is in proper form and properly executed. The relators sought a writ of peremptory mandamus to compel the mayor to execute and the corporation counsel to certify his approval of a written contract for the erection of an hospital for the city of Yonkers. The respondents, the mayor and App. Div.] Second Department, December, 1911. the corporation counsel, come into court and state their general willingness to do the acts requested, but excuse their failure to do so because of a question of law which has arisen and which, if not settled now, may lead to serious delay in the progress of the work of constructing the hospital. By section 120 of the statute above cited there was created for second class cities "a board of contract and supply, composed of the mayor, comptroller, commissioner of public works, corporation counsel and city engineer." This board was required by said section "to let to the lowest bidder, who will give adequate security therefor, all contracts for the performance of any work" required by the city, exceeding in cost the sum of $250. The section required a public advertisement for bids, and provided further as follows: "Specifications for the performance of any work and for the supply of any materials shall be prepared and set forth with sufficient detail to inform all persons proposing to bid therefor of the nature of the work to be done and of the materials to be supplied, and written or printed copies thereof shall be delivered to all applicants therefor. Every contract for a public improvement shall be based upon an estimate of the whole cost thereof, including all expenses incidental thereto and connected therewith, to be furnished by the proper officer, board or department having charge of such improvements." On June 26, 1911, the common council of the city of Yonkers adopted a general ordinance for the construction of a scarlet fever hospital, under the control of the commissioner of public works, according to the plans and specifications of a designated architect, which ordinance restricted the aggregate cost of the improvement to the maximum sum of $75,000, exclusive of architect's fees, and which likewise directed the board of contract and supply to take the proceedings provided by law to carry the ordinance into effect. Thereafter the board of contract and supply gave public notice to bidders and received and opened bids, compared the same, and by unanimous vote awarded the contract to the relators herein as the lowest bidders. Before a formal contract was executed, one George T. Kelly, who was one of the bidders, applied at Special Term for a writ of certiorari to review the action of the board of contration Second Department, December, 1911. [Vol. 147. and supply in making its award. After a hearing before the court, the motion for a writ of certiorari was denied, but the learned court handed down an opinion in which it declared that the proceedings relating to the receipt of bids and the award of contract were irregular and invalid. Because of this judicial opinion, the respondent city officers have refrained from executing or approving the written contract, which had been prepared by the corporation counsel for formal execution. The claimed invalidity in the proceedings arose as follows: Bids were solicited for the aggregate cost of the construction of the hospital building according to prescribed plans and specifications. These specifications contained a clause as follows: "Rock: If rock is encountered in the course of excavating the contractor will state in his bid how much extra per cubic yard it will cost to remove the same." The bid submitted by the relators offered to do all the necessary work of construction for the sum of $70,900, and contained no provision for any extra charge for the removal of rock. The bid of Kelly was in the sum of $70,888, and in addition an extra charge of $2.50 a cubic yard for excavation of rock which required blasting. Thereupon the board of contract and supply caused an estimate to be made of the approximate amount of rock excavation which might be required, and such amount was found to be about 350 cubic yards. Under these circumstances the relators were actually the lowest bidders, and the board proceeded to award the contract to them. It is claimed, however, that, as the specifications of the architect, while referring to the possibility of rock excavation, had failed to make any estimate as to the amount of such rock excavation, such specifications failed to comply in essential particulars with the requirements of section 120 of the statute above cited, and that, therefore, the whole proceeding of soliciting bids and awarding a contract was invalid. This claim seems to be based upon a misapprehension of the terms of the statute, and it is sought to be supported by the authority of some decided cases which seem not at all applicable. The work to be done was to construct a scarlet fever hospital. Excavation was a necessary element, but its relative cost was tal1or and insignificant. Rock might be encountered, but as App. Div.] Second Department, December, 1911. it turned out only in such small quantities that its removal, if paid for as an extra charge, would cost about one per cent of the total cost of construction. There was, therefore, in the specifications a statement with "sufficient detail to inform all persons proposing to bid therefor of the nature of the work to be done," etc. There was under these circumstances no defect in the specifications which in any way interfered with real and free competitive bidding on the entire work of constructing the hospital as a completed structure. The very closeness of the bids received show how well informed the bidders were as to the exact situation. The learned court at Special Term relied upon Brady v. Mayor, etc. (20 N. Y. 312) and a line of similar cases, most of which were governed largely by the provisions of statutes and ordinances peculiar to the city of New York and none of which in essential principle requires the decision made herein at Special Term. In Brady v. Mayor, etc. (supra) a contract was made for a public improvement which consisted of grading, flagging and curbing a portion of Eighty-third street in the city of New York. The nature of the improvement required an excavation of fixed rock which entailed more than seven-eighths of the whole expense. Proposals were solicited for the work, but bids were asked only as to the flagging and curbing, and to the person bidding the lowest price for the laying of flagging and curbing the contract for the whole work was awarded on conditions which allowed the lowest bidder on these items to fix his own price for the rock excavation. There was, therefore, no competition as to the rock excavation, which was not only a substantial part, but in fact the greater part of the whole improvement. The general ordinances of the city required the street commissioner to state in his advertisement for bids the nature and extent, as near as possible, of the work required. There was nothing to prevent a fair approximation by the street commissioner of the extent of necessary rock excavation and a call for competitive bids on this part of the work as well as on the flagging and curbing. The contract awarded was held invalid because the court held that under these circumstances there had been actually no free or fair competitive bidding for the whole work, when the competition |