First Department, May, 1921.

[Vol. 197 parent, for any fraud or deception that may have been practiced on the plaintiff subsequent to the first adoption does not in any way affect the validity of the second adoption.

APPEAL by the plaintiff, David W. Myers, 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 14th day of December, 1920, as resettled by an order entered in said clerk's office on the 30th day of December, 1920, dismissing the complaint on defendant's motion for judgment on the pleadings consisting of the complaint and answer, and also from the judgment dismissing the complaint entered in the office of the clerk of said court on the 30th day of December, 1920.

Ralph Stout [Adolph Ruger, attorney], for the appellant.

Frank B. York [York & York, attorneys], for the respondent. LAUGHLIN, J.:

This is an action brought for the annulment of two orders for the adoption of the defendant, who is plaintiff's child. Defendant was born on the 4th of January, 1905. Her mother died on the 11th of March, 1906, and on the 31st day of that month an order in due form as prescribed by the then existing Domestic Relations Law (Gen. Laws, chap. 48 [Laws of 1896, chap. 272], § 60 et seq., as amd.) was made by Judge ASPINALL, county judge of Kings county, allowing and confirming the adoption of the defendant by the mother of the plaintiff. The order recites that the plaintiff and the defendant and her grandmother personally appeared before the judge and were examined by him, and the petition for adoption and the order show that the plaintiff signed and acknowledged before the county judge on that day a formal certificate consenting to the adoption. The order and plaintiff's consent thereto are not set forth in the complaint; but they are made part of the answer and as will be seen they contain only what the statute required and failure to comply with the statute is not shown by the complaint. The complaint contains allegations tending to show that the plaintiff was misled and deceived by his sister and by an attorney into going before the county judge and executing his consent to the adoption. It contains no allegation with respect to any

App. Div. 1]

First Department, May, 1921.

false representation made at the time of the adoption or with respect to the contents of the paper which he executed and which was his consent to the adoption. It is alleged that the plaintiff and his sister were domestic servants in the employ of Dr. Shepard, a physician of prominence and wealth; that plaintiff's sister applied to him for leave to take and bring up the defendant and he declined her request and thereupon his mother offered to take and care for the child and he agreed to place the defendant with his mother until she attained an age when it would be possible for him to care for her, or until a change in his financial circumstances by which he would be better able to give her the care and attention which she required, and that he was then advised by Frank B. York an intimate acquaintance of and the attorney for Dr. Shepard that it would not be lawful for his mother to take the defendant without the approval of the court and that it would be necessary for him to go with his mother and the defendant to court and to have the court approve the arrangement, and that he believed said statements at the time "and relied on them in his subsequent acts," and accordingly on the 31st of March, 1906, went with his mother and the defendant to the County Court in Kings county "and appeared before some person unknown" to him and " then and there signed some papers, the purport of which was not explained to him, but which he has just been informed and believes was a consent on his part to the legal adoption " of the defendant by his mother; and he was not at any time informed by his mother or by York or by any other person" that by signing of the adoption papers above referred to, he would sever or in any way abrogate his relationship, either legal or otherwise, to the said child, but he was at all times told and led to believe by them that the said child would be restored to him at any time he desired." Plaintiff does not state whether or not he read the paper which he signed, which was the consent for the adoption of the defendant, or that he was induced to refrain from reading it by any misrepresentation of fact or that any misrepresentation of fact with respect to the contents of the paper was made to him. On no theory was he justified in relying blindly on the statement made by York that it would not be lawful for his mother to take the custody of the child temporarily, if

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[Vol. 197

that is all the agreement contemplated; and he is not entitled on the facts alleged to be relieved from his formal appearance and acts in accordance with the statute before the county judge in the adoption proceeding. The original adoption presumably was made in the form and manner required by the statute and the plaintiff having failed to show facts invalidating it, is not entitled to have the order canceled. Thus the entire theory of his complaint fails for the second adoption order, which was made by the surrogate of Kings county on the 21st day of September, 1908, was made on the duly executed and acknowledged consent of the plaintiff's mother who was then the foster parent of the defendant and by it defendant was duly adopted by the plaintiff's sister. The complaint contains other allegations with respect to facts which transpired after the original adoption upon which he claims that the second adoption was fraudulent and void; but it is not alleged that any fraud or deception was perpetrated on the foster parent, and any fraud or deception that may have been practiced upon plaintiff is immaterial for his consent to the second adoption was not required. Plaintiff's sister, the second foster parent of the defendant, died, leaving a last will and testament giving half of her residuary estate to the defendant and the income from the entire residuary estate to her when she attained the age of thirty years and appointing said York sole executor without bond and testamentary guardian of the defendant, and a codicil modifying the will by giving the defendant only the income from the entire residuary estate for life. Plaintiff alleges that said York and his father, who was also an attorney, procured the execution of the will by undue influence in order that they might obtain possession and control of the estate and that said York procured the execution of the codicil by undue influence in order that he might have control of the residuary estate and of the income thereof and for that purpose had it provided in the codicil that his disposition of the income should not be questioned by any person or in any court and that he induced the testatrix to appoint him testamentary guardian for the same purpose. Plainly those allegations have no bearing on the validity of the adoption orders. Since the allegations of the complaint are insufficient on any theory to warrant the annulment of

App. Div. 5]

First Department, May, 1921.

the adoption orders, it is unnecessary to consider whether, otherwise, the action might be maintained against the infant as a sole party defendant and with respect to whose conduct in the premises no charge is or, owing to her age at the time, could be made.

It follows that the order and judgment should be affirmed, with costs.

CLARKE, P. J., DOWLING, MERRELL and GREENBAUM, JJ.,

concur.

Judgment and order affirmed, with costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. DENNIS E. CONNERS, Respondent, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Appellant.

First Department, May 27, 1921.

Municipal corporations mandamus to compel return of deposit made by relator on filing bid for construction of school building general appropriation for construction of school buildings bidder could not withdraw bid where general appropriation was greater than bid though estimated cost of building was less defendant entitled to reasonable time to accept bid - when mandamus not appropriate remedy.

In mandamus proceedings instituted by a contractor to compel the defendant to return money deposited with a bid for the construction of a school building, it appeared that the board of estimate and apportionment of New York city created and made a general appropriation for the construction of fireproof school buildings; that the defendant adopted a resolution approving plans and specifications for the construction of additions to and alterations in one of the school buildings in New York city and estimated the cost at $600,000, which action was approved by the board of estimate and apportionment, the cost of construction to be chargeable against the general appropriation; that the relator submitted a bid for the performance of the work at a price in excess of the estimated cost, accompanied by a deposit as required; that the defendant shortly thereafter adopted a resolution subject to favorable action by the board of estimate and apportionment awarding the contract to the relator but did not notify him thereof; that thereafter the board

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[Vol. 197 of estimate and apportionment approved the form of contract and increased the estimate of cost to the amount of relator's bid; that then the defendant adopted a resolution appropriating the amount of relator's bid from said general appropriation; that thereafter the relator withdrew his bid and requested the return of the deposit, which act was not acquiesced in by the defendant, and that the defendant forfeited relator's deposit on his failure thereafter to execute the contract.

Held, that the relator did not have the right to withdraw his bid and demand a return of the deposit on the ground that the appropriation for the work in question was not sufficient to cover the amount of his bid, for the general appropriation made by the board of estimate and apportionment was sufficient though the estimated cost of the particular building 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.

The general appropriation being sufficient to cover the cost of the work, the bid by the relator was not invalidated by the fact that it was in excess of said amount.

Under the reserved power to reject any and all bids, the defendant was at liberty, if it saw fit, to reject them all as excessive; but deeming the relator's bid to have been reasonable, the defendant 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. 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 the board of estimate and apportionment would approve thereof at the increased cost, and to enable it to obtain such approval, and 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.

It cannot be said, as a matter of law, that a delay of thirty-nine days in accepting relator's bid was unreasonable, and, therefore, mandamus is not the appropriate remedy, for it will lie only where there is a clear legal right to the relief demanded.

APPEAL by the defendant, The Board of Education of the City of New York, 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 18th day of February, 1921, granting relator's motion for a peremptory writ of mandamus requiring respondent to return or pay over to the relator $16,000, deposited by him with a bid for con