It is by forced construction only that section 132 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as *195amd. by Laws of 1913, chap. 517) can be held applicable to this case. The plain intent of that section is to authorize an annulment of the contract through the fault of the contractor, in which case the contractor is made liable for any excess paid upon a reletting of the contract. Under section 15 of the Highway Law (as amd. by Laws of 1913, chap. 80) the Highway Commissioner is given authority to determine the method of construction of the highways. It would seem as a necessary incident to that power, in case it should be found that a method determined upon proved inadequate, that the Highway Commissioner should have authority to change the method of construction if necessary by the annulment of a contract made.. The contractor, however, under his contract has a vested right to the profits of his contract. Those cannot be taken away from bim without his fault. It cannot matter to him, however, whether the contract be annulled and his profits paid to him, or whether he be allowed to fulfill the contract and thus acquire the right to his profits. If the contract be annulled without his fault he has full remedy before the Board of Claims to recover the same if the State refuse to pay voluntarily. Under these circumstances he is not a party aggrieved by the determination under section 2127 of the Code of Civil Procedure.
Again, a writ of certiorari requires the respondent to certify a record. In the case at bar there is no record because there has been no trial. The Highway Commissioner would simply certify that he had been advised by his advisory board that the specifications were inadequate to a substantial highway. Upon that return the Special Term could make no determination. The act of the Commissioner in revoking this contract is to my mind purely an administrative act, not in any sense judicial; and even if the contractor were an aggrieved party it is difficult to see how he could obtain any remedy in the proceedings he has taken.
The order granting the writ should be reversed, with ten dollars costs and disbursements, and the motion for the writ denied and the writ quashed.
Order reversed, with ten dollars costs and disbursements, and motion for writ denied and the writ quashed.