Under the form of the bid submitted by the Seely-Taylor Company I think that company became obligated to execute the contract which was annexed to and a part of the bid if the contract was awarded to it, and was not authorized to withdraw a bid after it was submitted. The defendant was, therefore, hable for the damages sustained by the plaintiff in consequence of its failure of refusal to execute the contract. Under section 420 of the New York charter (Laws of 1901, chap. 466), however, the extent of this liability is fixed by the provision which required that the deposit made by the bidder with the comptroller at the time of making his bid should be the liquidated damages to which the plaintiff would be entitled if the accepted bidder refused to execute the contract. The plaintiff is, therefore, limited to the amount of such deposit *106as the damages to which it would he entitled for a breach of the obligation to execute the contract by the bidder. It appears by the record that that deposit has been returned to the bidder, but the effect of such return is not presented on this appeal. The only doubt I have is as to whether that amount could be recovered in this action, but I am inclined to think the court was right in view of the pleadings in dismissing the complaint. I have no doubt but that the liability of the defendant the Empire State Surety Company was limited to the obligation of the bidder and that, therefore, the complaint was also properly dismissed as to it.
For these reasons I concur in the conclusion'of Mr. Justice McLaughlin that the judgment should be affirmed.