Matter Daniel F. Allen v. Jacob Eberling Et Al‪.‬

Before damages may be awarded in an article 78 proceeding it must appear: (1) that the damages are incidental to the primary relief sought, and (2) that the damages are such as the petitioner could recover in an independent and separate action (CPLR 7806; McKinney's Cons. Laws of N. Y., Book 7B, CPLR 7806, Practice Commentary, p. 253; cf. People ex rel. Walker v. Ahearn, 139 App. Div. 88). As will appear, the second requirement is not met here because petitioner has neither statutory nor common-law right to damages. The duty of the respondent board to advertise for bids is set forth in section 103 of the General Municipal Law, which prescribes when and the manner in which a municipality shall request bids and award contracts. This and similar statutes were enacted to protect municipalities and the taxpayers therein, not to benefit or enrich bidders (Molloy v. City of New Rochelle, 198 N. Y. 402, affg. 123 App. Div. 642; Matter of General Steel Prods. Corp. v. City of New York, 18 Misc. 2d 106; Matter of Luboil Heat & Power Corp. v. Pleydell, 178 Misc. 562; 10 McQuillin, Municipal Corporations [3d ed.], § 29.29, pp. 266-267). While it is true that an unsuccessful bidder has standing to maintain a proceeding to review the award of a contract in violation of a statute requiring that the contract go to the lowest responsible bidder (Matter of Dictaphone Corp. v. O'Leary, 287 N. Y. 491; Matter of Cestone Bros. v. Solowinski, 276 App. Div. 970, 971; Kniska v. Splain, 110 N. Y. S. 2d 267, 269), this procedure is sanctioned merely to ensure enforcement of the statute (Matter of Dictaphone Corp. v. O'Leary, supra, p. 491). The unsuccessful bidder is not entitled to recover from the municipality the profits which he might have made had his bid been accepted (Molloy v. City of New Rochelle, supra; Smith v. City of New York, 10 N. Y. 504; Boro-wide School Transp. Corp. v. Board of Educ. of City of N. Y., 162 Misc. 1; People ex rel.