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In re Application of Egan

Supreme Court of New York, Appellate Division

December 29, 1911

In the Matter of the Application of JOHN J. EGAN, Respondent, for a Writ of Mandamus Directed to the BOARD OF WATER SUPPLY OF THE CITY OF NEW YORK and CHARLES STRAUSS and Others, as Commissioners of and Constituting the Board of Water Supply of the City of New York, Appellants.

APPEAL by the defendants, The Board of Water Supply of the City of New York and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of November, 1911.

COUNSEL

Page 178

Terence Farley of counsel [Archibald R. Watson, Corporation Counsel], for the appellants.

Alton B. Parker of counsel [Theodor Megaarden with him on the brief], Parker, Hatch & Sheehan, attorneys, for the respondent.

CLARKE, J.:

Appeal from an order directing that a peremptory writ of mandamus issue to the board of water supply and the commissioners thereof directing them to permit and afford the petitioner or his attorney an opportunity to inspect any and all reports of the chief and consulting engineers to the said board, or of any of the said engineers, on or relating to the passing upon and awarding by the said board of the contract known as 'Contract 90' and to permit and afford the petitioner or his attorney an opportunity to make extracts from the aforesaid reports.

The petitioner is a taxpayer. He alleges that the respondents advertised for bids for the construction of a tunnel extending under the Hudson river between Storm King and Break Neck mountains known as the 'Hudson Siphon; ' that four bids were received; that Anthony C. Douglas bid $1,432,000; that Winston & Co. & Breuchaud bid $1,483,936; that the T. A. Gillespie Company bid $1,648,000 and McArthur Brothers Company bid $1,755,168; that the board awarded the contract to the T. A. Gillespie Company, whose bid was $165,064 higher than that of Winston & Co. & Breuchaud, and $217,000 higher than that of Douglas; that Charles Strauss, the president of the said board, was for a time opposed to the granting, or at least reluctant to consent to the granting, of the said contract to the T. A. Gillespie Company under the circumstances, but finally joined with the other commissioners in awarding the contract; that the said Winston & Co. & Breuchaud are reliable and experienced contractors now doing excellent work in connection with the work of said board on two contracts which were more than half completed ahead of the schedule time at the date when the said contract 90 was awarded; that Anthony C. Douglas is a man of high reputation and integrity who has

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done difficult tunneling and shaft work and has an excellent reputation in carrying out such work; that the source of petitioner's information and the grounds for his belief of such statements is the report of the commissioners dated June 20, 1911; that because of the awarding of the said contract to the T. A. Gillespie Company, notwithstanding the fact that its bid was so much higher than the two bids made by thoroughly reliable contractors who had offered to give the most ample security for the timely performance of said contract, and because the contract could have been awarded to said responsible bidders, thereby saving to the city of New York the amount of the difference in said bids, the petitioner is desirous of inspecting any and all reports of the chief and consulting engineers to the said board of water supply, or of any of the said engineers, relating to the passing upon and awarding of the said contract which may be on file in the offices of the said board, and also of inspecting all other minutes, entries, books and other papers connected with or relating to the passing upon and awarding of the said contract by the said board, for the purpose of ascertaining whether the awarding of the said contract, as aforesaid, was in the best interests of the taxpayers of the city of New York and of your petitioner as one of the said taxpayers. He alleges a request to be allowed such examination to the board and a refusal by it. Thereafter he applied for a peremptory writ of mandamus, which was granted by the order appealed from.

It is provided in section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29) that 'All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this State, are hereby declared to be public records and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer.'

This provision, as well as the similar provision in the Greater New York charter (Laws of 1901, chap. 466, ยง 1545), has been considered by the courts of this State on several occasions.

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For many years, since at least 1872, taxpayers' actions have been authorized by the laws of this State. (Laws of 1872, chap. 161; Laws of 1879, chap. 526; Laws of 1880, chap. 435; Laws of 1881, chap. 531; Laws of 1887, chap. 673; Laws of 1892, chap. 301.) This policy is now expressed in section 1925 of the Code of Civil Procedure and in article 4 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29). The official corruption and mismanagement which were part of the history of the city of New York, known as the 'Tweed Ring Frauds,' were sought to be prevented in the future by providing for publicity of the records in public offices and representative actions by taxpayers. One was the necessary corollary of the other. To confer the right to sue, without conferring the right of investigation, would have been idle. It has come to be the accepted view that publicity is a preventative, if not a cure, for many evils. Publicity statutes have been enacted for quasi public as well as public corporations. It is earnestly advocated by many that such statutes should be extended to all corporations.

The early cases, therefore, before the authorization of taxpayers' actions, which denied the right of inspection unless the applicant showed a special and personal interest, are inapplicable, because the taxpayer, qua taxpayer, has such interest, established by law, as authorizes his action. Three cases are urged as authority for the reversal of this order. In Matter of Lord (167 N.Y. 398), which was an appeal by the petitioner from an order which limited his examination of the personal tax assessment books in the office of the commissioners of taxes and assessments in the city of New York, the majority of the Court of Appeals said, in affirming the order: 'We are not called upon at this time to determine the limits of a taxpayer's right of inspection. In the case at bar the petitioner has been allowed to examine his individual assessment and the assessment of all those taxpayers he represents in any capacity, and the only claimed right denied him is a general and unlimited ...


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