Opinion
October 26, 1961
Order, entered on September 15, 1961, granting respondents' motion to dismiss the petition, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, the motion denied, the petitioner granted leave to bring in the Board of Estimate as a party respondent and the respondents are directed to answer the petition within 20 days after the service of the order entered hereon. Even if we accept the tendered stipulation and look to the petitioner's brief for the facts, on this motion addressed to the sufficiency of the petition, pursuant to section 1293 of the Civil Practice Act, the record is barren of facts constituting the basis of the action of the Board of Estimate; further, there is nothing to indicate the Board of Estimate acted with or without knowledge of the facts. To give its action legal effect the determination of the Board of Estimate must be based on facts. Such a determination without supporting facts could be said to be arbitrary. ( People ex rel. Coughlin v. Gleason, 121 N.Y. 631, 634-635.) We deem the Board of Estimate to be a necessary party. Section 192 of the Civil Practice Act provides that no action or special proceeding shall be defeated by the nonjoinder or misjoinder of parties. When it appears that a necessary party has not been joined, an order may be entered bringing the party in. (Civ. Prac. Act, § 193, subd. 2.) It appears that the failure of the Park Commissioner to award the contract in question to the petitioner was due to the action of the Board of Estimate. Petitioner's claim rests on the assertion that the adoption of the resolution by the Board of Estimate was arbitrary and capricious. Such claim should be presented in a direct proceeding against the Board of Estimate wherein it may in detail justify its action. ( Matter of Sullivan v. Williams, 303 N.Y. 871; Matter of Corrigan v. Joseph, 304 N.Y. 172, 186; Matter of Golden v. Joseph, 307 N.Y. 62, 68.)
Concur — Botein, P.J., McNally, Stevens and Steuer, JJ.; Eager, J., concurs in the result.