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Action by Abner M. Harper, Incorporated, against the City of Newburgh, for rescission of a bid for municipal work, and to recover $500 deposited with the bid to secure compliance therewith. Complaint dismissed.

Hirschberg & Hirschberg, of Newburgh, for plaintiff.
Graham Witschief, of Newburgh, for defendant.

TOMPKINS, J. The plaintiff made a mistake in certain figures contained in a bid which it submitted to the defendant for street improvement work in the city of Newburgh, and now seeks to rescind its bid and recover the sum of $500 deposited with said bid with the city clerk.

The bid consisted of several items, and plaintiff's claim is that there was an unintentional transposition of figures as to two items as follows: The plaintiff had intended to charge 90 cents per lineal foot for bluestone curbing, and 65 cents per lineal foot for concrete curbing; whereas, in the bid as submitted, those figures were inadvertently transposed, so that the plaintiff offered to do the bluestone curbing at 65 cents per lineal foot, instead of 90 cents, and the city council, receiving the bid in that form, acted upon and accepted it, in the absence of any representative of the plaintiff. The next morning, after the plaintiff's bid had been accepted and the contract awarded, the mistake was discovered by plaintiff's officers, who promptly gave notice to the defendant of the mistake, and asked leave to withdraw said bid and for a return of the said deposit of $500. Correspondence and negotiations followed, culminating in the awarding of a contract for the said street improvement to another concern, and action of the city council intended to operate as a forfeiture of the plaintiff's deposit.

The mistake in plaintiff's bid is admitted. At least there is no claim that the figure given for bluestone curbing was intended to be given, and the plaintiff's claim that it was a mistake, and that the work could not have been profitably done for that price, is not disputed. Under the circumstances, it would seem that justice and equity required a return to the plaintiff of its deposit, and that was my impression at the trial; but it seems that the law is the other way, and that the plaintiff cannot recover its deposit after the defendant has acted upon the bid and awarded the contract, unless there was a mutual mistake, or a mistake on one side and fraud or bad faith on the other. There is no claim that there was a mutual mistake, nor does the plaintiff contend for any fraud, deceit, or bad faith on defendant's part. The mistake or error in the bid was not apparent on its face, nor was the defendant's attention called to it until after it had been accepted and the contract awarded.

Under these circumstances, it seems that the awarding of the work to the plaintiff made a complete contract, which is binding upon both parties, and from which neither may escape, except upon proof of fraud or bad faith or mutual mistake. City of New York v. SeelyTaylor Co., 149 App. Div. 98, 133 N. Y. Supp. 808. In this recent decision the bid was more than $100,000 less than the next lowest bidder,

while the lowest bid on readvertisement was $124,000 higher than the one in suit, which was $10,000, when it was intended to be $103,000. In the case of City of New York v. Dowd, 140 App. Div. 359, 125 N. Y. Supp. 394, cited by plaintiff's counsel, the error appeared on the face of the bid, it being the extension of multiplications, the items of which appeared on the bid, and the city's engineer at once noticed the mistakes in the extensions, before the bid was acted upon. In Moffett, Hodgkins & Clark Co. v. City of Rochester, 178 U. S. 373, 20 Sup. Ct. 957, 44 L. Ed. 1108, the bid, as to one item at least, was read before any other bid as to that same item was read, and immediately on hearing the bid as to that item read the company's representative announced that the bid was erroneous and explained the error. The chief error was in one item, which read $1.50 per cubic yard for rock tunneling, while all the other bids submitted varied from $12 to $15 per yard. The company's representative at once claimed that the person who filled out the formal bid had been instructed in writing to enter a bid of $15 as to that item, instead of $1.50. The figures had been copied from a memorandum by a bookkeeper who was very shortsighted. The error as to the first item was in inserting the bid for another item. These errors were observed and called to the attention of the city authorities before the bid was formally acted upon. These facts distinguish this case from the one at bar.

The defendant is entitled to judgment dismissing the complaint, with costs.

R. F. STEVENS CO. v. MAUS.

February 14, 1913.)

(Supreme Court, Appellate Division, Second Department. EXECUTION (§ 372*)-SUPPLEMENTARY PROCEEDINGS-EXAMINATION OF DEBTOR PRIOR TO RETURN.

Code Civ. Proc. § 2436, provides that at any time after the issuing and before the return of an execution the judgment creditor, on written evidence that the judgment debtor has property which he unjustly refused to apply toward the judgment, is entitled to an order requiring the debtor to be examined concerning his property. Held, that an order for the examination of a judgment debtor under such section is auxiliary and not supplementary to the execution, and that the remedy provided thereby is not barred by the lapse of 10 years from the date of the return of an execution on the judgment, where another execution had been issued on which no return was made.

[Ed. Note. For other cases, see Execution, Cent. Dig. § 1099; Dec. Dig. § 372.*]

Appeal from Special Term, Kings County.

Action by the R. F. Stevens Company against Henry Maus From an order denying defendant's motion to vacate an order for his examination before the return of execution, under Code Civ. Proc. § 2436, he appeals. Affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Frederick E. Fishel, of New York City, for appellant.
J. T. Cruser, of Brooklyn, for respondent.

JENKS, P. J. The judgment debtor appeals from an order of the Special Term that denies his motion to vacate an order for his examination made pursuant to section 2436 of the Code of Civil Procedure. The judgment was entered September 20, 1893, and an execution issued forthwith was returned partly satisfied on October 3, 1893. A further execution was issued on November 20, 1912, and was outstanding on November 23, 1912, when the order under the said section was made.

The sole ground taken for vacation was that the right thereto was and is barred by section 2435 of the Code of Civil Procedure. We are cited to I. & T. N. Bank v. Quackenbush, 143 N. Y. 567, 38 N. E. 728. That case determined that an order authorized by section 2435 became barred after the lapse of 10 years from the date of the return of an execution, but in no way dealt directly with section 2436. But the contention of the appellant is that the reasoning of the opinion is applicable to the latter section. The Court of Appeals placed its decision upon two grounds. The first ground is that, as the judgment was barred after the lapse of 20 years, it was reasonable to suppose that at some time within that period the debtor was relieved from proceedings of the character in question, and that such limitation was determined by the statute itself to be 10 years, inasmuch as the statute prescribed that at any time within 10 years after the return of an execution the judgment creditor was entitled to the order. There is no analogy beween the statute then considered by the Court of Appeals and the statute now under consideration, save that both are in aid of the judgment creditor. Section 2435 provides a remedy after a returned execution, and consequently arises upon the whole or partial failure of the execution. Section 2436 provides a remedy in furtherance of an outstanding execution. There is no express limitation in section 2436 like unto that of the 10 years in section 2435, save that the period of issuance is confined to any time after the issuing of execution and before the return thereof. If the general principle enunciated by the Court of Appeals in I. & T. N. Bank v. Quackenbush, supra, that every such remedy must be "barred by the lapse of some definite period of time" must be applied to this remedy, then such principle is substantially satisfied by this provision last mentioned.

The second ground in I. & T. N. Bank v. Quackenbush, supra, is that proceedings supplementary to execution are remedies in equity substitutive for the creditors' bill of chancery; that the rule that such bill could not be maintained unless the creditor had exhausted all his remedies at law or was in such a position as to make such remedies unavailable, applied to an order made under section 2435; and that, therefore, if the creditor's judgment had ceased by lapse of time to be a lien, his remedy at law could not be exhausted, and he must by some proper proceeding reinstate the lien, for otherwise the issue and return of the execution would be an idle ceremony. But I think that an order made under section 2436 is not in its nature a substitute for the

* *

former creditors' bill For the right to bring such a bill, aside from statutory provisions, rests upon a judgment, and in "a creditors' suit, strictly so called, * where the creditor seeks to satisfy his judgment out of the equitable assets of the debtor which cannot be reached on execution," generally the creditor must have an execution returned unsatisfied. Pomeroy's Equitable Remedies, §§ 882, 887. As the order under section 2436 must be made while the execution is outstanding, it is auxiliary, not supplementary, to the execution, and until the return of that execution it cannot be known that the remedy at law has been exhausted. The order was issuable while an execution could be issued, and in this case there is no question as to the regularity of the execution. Section 1377 of the Code of Civil Procedure.

The question presented by this appeal was decided correctly at Special Term in Press Pub. Co. v. McGill, 136 N. Y. Supp. 177. The order must be affirmed, with $10 costs and disbursements. All concur.

PENFIELD v. PENFIELD.

(Supreme Court, Appellate Division, First Department. February 7, 1913.) 1. WORK AND LABOR (§ 7*)-SERVICES BETWEEN PERSONS IN FAMILY RELATION.

Where a child, whose mother died shortly after her birth, was brought up by an aunt, who in about five years became her stepmother, and she continued to reside with her father and stepmother during her infancy and after she attained full age, and continued to reside with her stepmother after her father's death, and returned to live with her stepmother pursuant to her invitation, the law would not imply a promise to pay for board.

[Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 111⁄2-22; Dec. Dig. § 7.*]

2. WORK AND LABOR (§ 28*)-SERVICES BETWEEN PERSONS IN FAMILY RELA

TION.

Evidence held not to justify a finding of a contract binding a child to pay board while living with her aunt, who became her stepmother. [Ed. Note. For other cases, see Work and Labor, Cent. Dig. §§ 17, 55; Dec. Dig. § 28.*]

Dowling, J., dissenting.

Appeal from Judgment on Report of Referee.

Action by William W. Penfield, as executor of Louisa Ann Penfield, deceased, against Susan A. Penfield. From a judgment for plaintiff, entered pursuant to a decision of a referee, to whom the issues had been referred to hear, try, and determine, defendant appeals. Reversed, and new trial ordered.

See, also, 145 App. Div. 916, 129 N. Y. Supp. 1139.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and DOWLING, JJ.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Thomas A. McKennell, of New York City (George C. Appell, of Mt. Vernon, and Alfred H. Appell, of New York City, on the brief), for appellant.

Gerard Roberts, of New York City, for respondent.

LAUGHLIN, J. During the period from September 1, 1901, to November 1, 1905, the appellant resided with her stepmother at the homestead in Westchester county, which the appellant's father had by will left to his widow, the plaintiff's testatrix, for life "as a house for my family"; and this action is brought to recover for the board and lodging of the appellant during that time. The plaintiff alleges that the board and lodging were furnished at the request of the appellant, and were reasonably worth the sum of $25 per week. These allegations were put in issue by the answer, and the appellant alleged that the board and lodging were furnished to her gratuitously, and she also interposed the statute of limitations as a bar to a recovery. The action was not commenced until the 5th day of August, 1910. The referee rules that the action, in so far as a recovery is sought for the period prior to August 5, 1904, is barred by the statute of limitations; but he allowed a recovery for the period between the 5th day of August, 1904, and the date of the death of appellant's stepmother, November 1, 1905, at a rate of $25 per week, that being the value of the board and lodging as given by two boarding house proprietors, called by plaintiff as experts, in answer to hypothetical questions.

[1] The appellant and a brother are the surviving issue of their father's first marriage. The second wife of the appellant's father was his first wife's sister, and therefore the plaintiff's testatrix, in behalf of whose estate a recovery for appellant's board and lodging is sought, was both appellant's stepmother and aunt. Moreover, appellant's mother died a week after appellant was born, and her aunt, who within about five years became her stepmother, cared for and brought her up as if she were her own child. The appellant continued to reside with her father and stepmother until about 1892, at which time she was about 40 years of age. Prior to appellant's birth, her mother's mind had been affected, and evidently the appellant inherited a weak mind, for she was and is of a melancholy disposition and eccentric, and her presence annoyed, and at time tested the patience of, those about the household, although, apparently out of consideration for her mental condition, no feeling of ill will was entertained against her. During the year last mentioned the appellant's father took her away. from home on a visit, and, instead of bringing her back, left her as a boarder where they had visited, and from that time on until he died, in August, 1896, she did not again become a permanent member of his household, although from time to time she made short visits home, and she was visiting there when her father died. Appellant's stepmother left two sons, the issue of her marriage to appellant's father. On the death of appellant's father, she and her brother and her stepbrother William and her stepmother constituted the remaining members of the household. William was unable to, or would not, bear with appellant's eccentricities, and he insisted that she should not re

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