Petitioner was the low bidder on a construction contract advertised by the Commissioner of Parks. His bid was rejected and the contract awarded to the next lowest bidder. He brings this article 78 proceeding to compel the Commissioner to award the contract to petitioner. The matter was previously before this court. We then found that the Commissioner acted pursuant to a resolution of the Board of Estimate dated July 27, 1961, which resolution approved a letting of the contract to Triton Construction Corporation (the next lowest bidder) without public bidding, at the price of their bid. We then held that the issue was whether in passing the resolution the Board of Estimate was capricious or arbitrary, and we directed that the petition be served on the board and that the board be directed to answer (14 A D 2d 769). We also held that unless the board acted with knowledge of the facts its action might be deemed arbitrary. Its answer was to show what facts it acted upon. The board was served and has ansAvered. A motion based on the petition and the answer so served has resulted in the petition being dismissed.
The answer filed alleges the following facts. The Department of Investigation conducted an investigation to see whether *381certain employees of the Board of Education had been receiving gifts or gratuities from contractors doing construction work on contracts with the board. Following the report of that investigation, the Mayor, through the Deputy Mayor, addressed a memorandum (called Executive Memorandum No. 93, June 5, 1961) to all mayoral agencies. Each member of the Board of Estimate received a copy, not in his capacity as a member of the board but as an official of a “ Mayoral Agency ”, whatever that may be. The memorandum states that in testimony given to the Commissioner of Investigation an inspector of the Board of Education had admitted accepting things of value from contractors doing business with the board. A list of those contractors was attached. The memorandum directs that if any of the listed contractors is the low bidder on a contract not yet awarded, the contract should not be awarded to him. If permission is needed to award the contract to the second bidder, permission should be sought from the Board of Estimate. Petitioner was not named in the list of contractors, but in a Memorandum No. 93S of June 15, 1961, three additional firms, one of whom was petitioner, were added to the list. The answer further states that a letter from the Director of the Budget was submitted to the board proposing to let the contract to the second bidder pursuant to the directions contained in Executive Order 93. The board thereafter adopted the resolution awarding the contract to the second bidder.
It would seem that these facts fall far short of such a conclusive showing that the board acted with such knowledge that the charges of arbitrariness and caprice cannot be charged to it. No attempt is made to show that in passing on the resolution any member of the board had the executive memorandum in mind. While it is alleged that the memorandum was sent to each member, it appears that it was sent to him as an agency head and was received by his office, but there is nothing to show that he ever so much as saw it personally.
But the objection to the pleaded facts goes deeper. Even if it be assumed that each member of the board passing on the resolution had viewed the executive memoranda and was acting pursuant to them, the petition here is not thereby defeated. All that the original memorandum conveys is that the Mayor, on evidence satisfactory to him, has deemed that the banned contractors should not be allowed to contract with the city. But the. Mayor has neither the authority to make such a direction nor to substitute Ms opinion on its advisability for that of the board. And if the board acts upon that naked opinion, it is derelict in its duties and its action cannot be justified.
*382The contractor has seen fit to include in the record an explanation of how its name came to be included in Memorandum 93S. It admits making gifts, which it characterizes as small, of frozen steaks to various officials at Christmas time. We do not pass on the question of whether these gifts are a valid reason for barring it from city work. That determination is the function of the board and unless its conclusion is so far out of line from proper standards that it can be held to be arbitrary or capricious, its decision would be final. But for all that appears, it made no determination, nor is it shown to have any information whatsoever on the subject, except the sketchy conclusion contained in the executive memorandum. Respondents do not even have the consolation that the sponsor of the memorandum, the Mayor, must be deemed to have knowledge of the underlying facts. He did not sit on the occasion that the board considered the resolution in question.
Our conclusion is that the determination of petitioner’s petition on the allegations in this answer was at worst wrong, at best premature. The issues remain and they call for a trial.
The order dismissing the petition should be reversed and the matter remitted to Special Term for trial.
Valente, J. P., and McNally, J., concur with Stevens, J. ; Eager, J., concurs in opinion in which Valente, J. P. and McNally, J., concur; Steuer, J., dissents in opinion.
■ Orders entered on November 24, 1961 affirmed, with $20 costs and disbursements to the respondents.