First Department, May, 1921. [Vol. 197 additional appropriation. That action was brought by the lowest bidder to recover of the city damages for the loss of the profits he would have made on the contract if awarded to him, and it was held that the bid being in excess of the appropriation was invalid and that the subsequent increase of the appropriation by the issuance of corporate stock did not inure to the benefit of the plaintiff and that his bid was properly rejected. Here, as the corporation counsel advised the defendant, the $5,575,000 had been duly appropriated and was available for this contract work; and the bid was not invalidated by the fact that it was in excess of the amount estimated as the cost of the work. That estimate was doubtless required to be made in the expectation that bidders would keep within it and thus it was intended as a check on bidders and as a limitation also on the authority of defendant to award the contract. Under the reserved power to reject any and all bids, defendant was at liberty, if it saw fit, to reject them all as excessive; but deeming the relator's bid reasonable, it was at liberty to hold it under consideration and to endeavor to obtain the consent of the board of estimate and apportionment to its acceptance, as it did. It cannot be said that the bid was invalid on the theory that it was in excess of the appropriation for the work because the estimate of the cost of the work did not constitute the appropriation therefor. A sufficient general appropriation had been made and it was not essential that the sub-appropriation be made until the precise amount required should be determined. I am also of opinion that Clarke Co. v. Board of Education (supra) is not in point for there the appropriation was not a general appropriation, but in and by the appropriation a specified amount was appropriated for the construction of specified school buildings, which made the appropriation precisely the same as if the only appropriation was for the particular school building with respect to the construction of which the point arose. That, also, was an action by a contractor for the recovery of prospective profits on the theory that it was entitled to have the contract awarded on its bid. In that case the board of education had requested a general appropriation of a lump sum for the erection, equipment and improvement of school buildings and premises but the appro App. Div. 5] First Department, May, 1921. priation was not so made; and the board of education was requested by the comptroller, in line with the established policy for certain other departments, to itemize the appropriation required for specific buildings, and subsequently on receiving information from the board of education with respect to the requirement for the particular buildings, the board of estimate and apportionment authorized the issuance of corporate stock not exceeding the specified amount to "provide means for the construction and improvement of public school buildings and additions thereto as follows;" and this was followed by a detailed schedule specifying the amount appropriated for each building and the resolution provided that the proceeds of the issuance of corporate stock should "be applied to the purposes aforesaid." The resolution was concurred in by the board of aldermen and approved by the mayor. Among the items of that appropriation was one of $182,000 for Public School 92. Plans and specifications for that building were prepared and duly approved and bids invited therefor and the lowest bid received was for $99,000 more than the appropriation. Defendant undertook to accept the bid by a resolution to the effect that it was accepted "subject to financial ability;" but thereafter the contractor was notified that the appropriation for the building of the school was insufficient and that the conditional award to him was withdrawn for the reason that there was no appropriation therefor. This court held that there was no valid acceptance of the bid and that the board had no right to make the conditional acceptance because the bid exceeded the amount appropriated for the work, and it was also held that the provisions of section 1541 of the Greater New York charter forbidding any department, board or officer to incur any expense unless an appropriation shall have been previously made covering such expense or any expense in excess of the sum appropriated in accordance with law," applied to the board of education and restricted its authority. Section 877 of the State Education Law (as added by Laws of 1917, chap. 786) is in effect the same as said section of the charter (as amd. by Laws of 1910, chap. 543). I am, therefore, of opinion that the defendant was entitled to a reasonable time after the receipt of the bids to determine whether the lowest bid was reasonable and should be accepted provided First Department, May, 1921. [Vol. 197 the board of estimate and apportionment would approve thereof and to enable it to obtain such approval of the board of estimate and apportionment, and that under the express terms under which the bids were invited and received, the relator had no right to withdraw his bid while it was being considered unless final action thereon was delayed for an unreasonable length of time. Subsequent to the receipt of these bids, the Legislature, by chapter 856 of the Laws of 1920, added section 86-c to the General Municipal Law authorizing the withdrawal of bids and of deposits made therewith where a contract is not awarded within forty-five days after the receipt of the bids. If that enactment were applicable, it would not have authorized the withdrawal of the relator's bid, for the resolution awarding the contract to the relator after the board of estimate and apportionment approved was adopted on the thirtieth day after the receipt of the bids and he received formal notice that the contract had been awarded to him on the fortieth day. The only theory on which the relator would be entitled to withdraw his bid and to the return of his deposit is that the defendant took an unreasonable period of time in considering the award of the contract. If it could be said as matter of law that the period was unreasonable, the order for the issuance of the mandamus might be sustained (Matter of Harvey v. Duffey, 101 Misc. Rep. 641; affd., sub nom. People ex rel. Harvey v. Duffey, 182 App. Div. 903; Gunnison v. Board of Education, 176 N. Y. 11; Dannat v. Mayor, 66 id. 585); but I deem it quite clear that it cannot be so held. The facts essential to a decision on that 'point have not been shown. There is no competent evidence of any change in the cost of construction. There is merely the relator's statement to that effect in the letter in which he attempted to withdraw his bid; and there is no evidence with respect to the times of meetings either of the members of the defendant or of the members of the board of estimate and apportionment, or of the time required for such investigation as they may have deemed essential to guide their action in the premises. Mandamus is an appropriate remedy only where there is a clear legal right to the relief demanded. (People ex rel. Lentilhon v. Coler, 61 App. Div. 223; People ex rel. Ajas v. Board of Education, 104 id. 162; People ex rel. Rolf v. Coler, App. Div. 15] First Department, May, 1921. 58 id. 131.) It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs. CLARKE, P. J., DOWLING, MERRELL and GREENBAUM, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs. JAMES W. KING, Respondent, v. INTERBOROUGH RAPID TRANSIT COMPANY, Appellant. First Department, May 27, 1921. Street railways - action for damages by passenger, who, while standing on elevated railway platform, was struck by bundle of newspapers thrown by third person from passing train - defendant not liable for act of third person negligence on part of defendant not shown res ipsa loquitur not applicable. The plaintiff, who had purchased a ticket and entered on the elevated platform at one of defendant's stations, was waiting for a train when a bundle of newspapers was thrown from a passing train, striking him and causing the injuries for which this action was brought. It appeared that the Public Service Commission had formulated rules regulating the carrying of bundles of newspapers on elevated trains, one of which prohibited the throwing of bundles from trains while in motion, and that the conductors and guards were instructed to stand on the car platform while a train was passing a station and not to permit bundles of papers to be thrown from the train. Held, that the defendant, in the absence of negligence chargeable to it, was not liable for the act of a passenger on its train in throwing a bundle of newspapers therefrom, which was the proximate cause of the injury. There was no proof by the plaintiff of any course of conduct in regard to throwing bundles from moving trains at the station in question or any other, which would bring home to the defendant knowledge of a course of action upon the part of carriers of papers so as to charge it with responsibility, and furthermore the defendant had done all that it could be expected to do to prohibit the throwing of bundles from trains. There was no proof that defendant's train approached the platform in question at a high and reckless rate of speed as alleged by the plaintiff, nor that it so passed the platform. First Department, May, 1921. [Vol. 197 The absence of a guard on the platform of the car from which the papers were thrown cannot be said to have been the cause of the accident. The doctrine of res ipsa loquitur has no application to this case, since that doctrine applies only where the instrumentality through which the accident happens is solely and entirely under the control of the defendant. GREENBAUM and MERRELL, JJ., dissent, with opinion. APPEAL by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1920, on the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the same day denying defendant's motion for a new trial made upon the minutes. James L. Quackenbush [A. H. Cole of counsel], for the appellant. James A. Beha [John J. Cunneen with him on the brief], for the respondent. DOWLING, J.: The complaint herein sets forth that on October 23, 1918, and for a long time prior thereto the defendant, its agents, servants and employees, recklessly, carelessly and negligently permitted and assisted in the distribution of packages of newspapers along the lines of its Third Avenue elevated railroad, and recklessly, carelessly and negligently permitted its agents, servants and employees and others to throw or hurl bundles of newspapers from the platform of its trains to the platform of its station along its tracks while the said trains were passing said station platforms at a high and reckless rate of speed. It then averred that about one P. M., on the 23d day of October, 1918, plaintiff entered upon the defendant's elevated structure at Eighteenth street and Third avenue, in the city of New York, on the east side of the avenue, and after paying his lawful fare entered upon the platform of the station adjoining the uptown track, and while standing on the platform of the station and awaiting a train upon which to go uptown, for which purpose plaintiff became a passenger of the defendant company and had paid his lawful fare, one of the trains of the defendant company approached the station |