App. Div. 5] First Department, May, 1921. struction work, for which it invited proposals, and interest thereon. Joseph L. Pascal [John P. O'Brien, Corporation Counsel], for the appellant. M. Carl Levine, for the respondent LAUGHLIN, J.: On the 30th day of December, 1918, the board of estimate and apportionment created and made a general appropriation of $5,575,000 for the construction of fireproof school buildings by the adoption of a resolution authorizing the issuance of bonds therefor and appropriating the proceeds of the bonds thereto, and in like manner provided for an appropriation of $2,062,500 for heating, ventilating, plumbing, sanitary appliances and an electrical plant and equipment for the buildings and $412,000 for furniture and school equipment therefor. The resolution provided that the amounts to be expended therefrom were "to be sub-authorized from these appropriations by the Board of Estimate and Apportionment predicated upon requisition from the Board of Education for stated amounts to cover the cost of constructing, etc., the foregoing school buildings," and further provided that no incumbrance by contract or otherwise should "be made against these authorizations" and that bids upon contemplated contracts should not be advertised for until after the approval of the board of estimate and apportionment of the plans, specifications and estimated costs and form of proposed contracts for the improvements. It is stated in the points submitted by the corporation counsel that this appropriation was authorized by the board of aldermen and that such authorization was essential to its validity. That argument is doubtless based on section 47 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1916, chap. 615), but section 169 of the charter (as amd. by Laws of 1916, chap. 615)* appears to empower the board of estimate and apportionment to act alone in authorizing an appropriation by the issuance of such bonds,. and since that point is neither presented by the record nor * Since amd. by Laws of 1920, chaps. 589, 960.—[Rep. First Department, May, 1921. [Vol. 197 essential to the decision, we express no opinion thereon. On the 6th of August, 1919, defendant duly adopted a resolution approving plans and specifications for the construction of additions to and alterations in the Newtown High School and estimating that the cost would be $600,000; and on the twentyfifth of that month through its vice-president, by formal communication submitted to the board of estimate and apportionment for approval the plans and specifications for the work, stating the estimated cost thereof as $600,000 and that it would be chargeable as an authorization against said general appropriation and that the plans and specifications had been duly approved by it. The deputy and acting comptroller on the 13th of September, 1919, pursuant to authority delegated to the comptroller by a resolution of the board of estimate and apportionment duly adopted on the eighteenth of July, approved the plans and specifications and on that day formally communicated his approval to the defendant with a proviso that if no bid should be received for the work within the estimated cost, the amount of the estimated cost might be reconsidered by the board of estimate and apportionment, in its discretion, or by any official designated by it, provided that there should be a bid within the amount authorized and available for the work. Defendant thereupon advertised for bids requiring that they be accompanied with a certified check for $16,000. The advertisement also provided that no bid should be withdrawn pending the award of the contract by the defendant. On the 12th of January, 1920, the relator submitted to the defendant a bid for the performance of the work for $794,000 accompanied by a check for $16,000 as required. This was the lowest bid. There were two other bids, one $5,000 and the other $93,000 higher. On the fourteenth of the same month the defendant adopted a resolution, subject to the favorable action by the board of estimate and apportionment, awarding the contract to the relator at his bid, but did not give him notice thereof. On the twenty-third of January the board of estimate and apportionment by resolution approved the form of contract, specifications and plans which had theretofore been approved by the deputy and acting comptroller and an increased estimate of cost of $794,000 for the work and provided that the cost App. Div. 5] should be charged as an authorization against the general appropriation theretofore authorized by the board of estimate and apportionment for the general construction of fireproof school buildings, which were subject to authorization of the stated amount to be expended in the construction of each specific school to be predicated upon requisition by the defendant to the board of estimate and apportionment, and that such approval and increased estimated cost were in substitution for the approval at an estimated cost of $600,000, theretofore granted by the deputy and acting comptroller "consequently increasing the sub-authorization against such general appropriations from $600,000 to $794,000." On the 11th of February, 1920, the defendant adopted a resolution appropriating the sum of $794,000 from said general appropriation to be applied in payment of the contract to be entered into with the relator for that amount for the general construction of additions to and alterations in the Newtown High School and making requisition on the comptroller for that amount, but at that time gave no notice thereof to the relator. On the nineteenth of that month the relator wrote the defendant referring to his bid and to the fact that no award of the contract had been made and stating that since the bids were opened, there had been a substantial increase in the cost of the work and that he, therefore, withdrew his bid and requested the return of the deposit. On the twentieth of February defendant, through its secretary, wrote the relator referring to his letter of the day before and stating that the contract for the work was awarded to him by the defendant subject to the approval of the board of estimate and apportionment and that upon notification of favorable action by that board, defendant on the eleventh of February, adopted a resolution making the necessary appropriation to carry out the relator's contract for the work and that his bid had been forwarded to the comptroller, whose approval of surety was required before the contract could be executed; and by another like communication on the same day, defendant notified the relator that on the 11th of February, 1920, the superintendent of school buildings recommended the acceptance of his bid and the recommendation was approved and ratified by the defendant and the contract was awarded to him subject to the approval of First Department, May, 1921. [Vol. 197 sureties and the execution of the contract and certification thereof by the comptroller, and calling upon him to present his sureties to the comptroller for qualification within five days and specifying the amount of the bond required. These two communications were received by the relator the next day. On the twenty-eighth of February defendant sent another communication to the relator stating that on the twenty-fifth of February defendant considered his communication dated February twentieth withdrawing the bid and requesting the return of the deposit and decided not to permit the withdrawal of the bid and denied his request for the return of the deposit. The record does not show that the relator presented two communications requesting the withdrawal of the bid and the return of his deposit, but whether the last letter referred to relates to the original request or another is immaterial. On the 1st of March, 1920, the attorney for the relator wrote the defendant referring to its communication to the relator of the twentieth of February, regarding the withdrawal of his bid and stating that his understanding was that the reason the contract was awarded to his client subject to the approval of the board of estimate and apportionment was the lack of an appropriation or that the amount appropriated for the work from the general appropriation was insufficient and that it became necessary to apply for an increase "in the allotment " and inviting attention to certain authorities under which he claimed that without regard to whether or not the relator was entitled to withdraw his bid, the contract could not be awarded to him for the reason that the appropriation was insufficient at the time the bids were received. On the sixth of March defendant notified the relator that it was in receipt of a communication from the department of finance stating that he had not presented a surety as required and drawing his attention to section 419 of the Greater New York charter, which provides that if a bidder whose bid has been accepted shall neglect or refuse to accept the contract within five days after written notice that it has been awarded to him or if he accepts but does not execute the contract and give the proper security, the work shall be readvertised and relet, and requesting him to give the matter his immediate attention. (See Laws of 1910, chap. 554, App. Div. 5] First Department, May, 1921. amdg. Greater N. Y. Charter, § 419.) On the 30th of March, 1920, defendant transmitted to the relator a copy of an opinion received by it from the corporation counsel under date of March first, in which he considered the authorities cited by the attorney for the relator and conceded that if at the time the bids were received there was not a sufficient appropriation the award of the contract would be invalid, but he maintained that the general appropriation of $5,575,000 was available for this work and that the original estimated cost did not constitute a limitation of the appropriation and that the board of estimate and apportionment was at liberty to approve an increased estimate of cost sufficient to meet the relator's bid, as it did, and that if the relator failed to execute the contract his check would be forfeited. On the 30th of April, 1920, defendant transmitted to the relator a certified copy of a resolution adopted by it on the twenty-eighth of April, reciting the proceedings on his bid and declaring the security deposited by him forfeited and authorizing the superintendent of buildings to readvertise the work. The authorities on which the relator relies hold that there must be sufficient appropriation at the time the bids are received in order to warrant the letting of a contract. (Williams v. City of New York, 118 App. Div. 756; affd., 192 N. Y. 541; followed, People ex rel. Carlin Const. Co. v. Prendergast, 220 id. 725; Clarke Co. v. Board of Education, 156 App. Div. 842; affd., 215 N. Y. 646; Klinck v. Pounds, 163 N. Y. Supp. 1008.) Here, however, the appropriation was sufficient but the estimated cost was too low and the consent of the board of estimate and apportionment was required, not to increase the appropriation, but to increase the estimated cost which limited the amount the defendant was authorized to use out of the appropriation without further action by the board of estimate and apportionment. Williams v. City of New York (supra) is plainly distinguishable from the case at bar on the ground that there the lowest bid when received exceeded the appropriation available for the work, and in order to create a sufficient appropriation to cover the lowest bid, it became necessary for the board of estimate and apportionment and the board of aldermen to authorize the issuance of corporate stock, thus creating an |