While I fully agree with what Mr. Justice Stevens has written, I would like to specifically pinpoint the grounds for my concurrence in an affirmance of the order appealed from. The relief sought by the amended petition is an order in the nature of a mandamus order directing the Park Commissioner to award the particular construction contract to the petitioner and canceling the award of the contract to the Triton Construction Corporation. We are directly concerned here solely with the award of the particular contract. The Park Commissioner acted by virtue of a resolution by a three-fourths vote of the Board of Estimate adopted pursuant to the provisions of section 343 of the New York City Charter. Said provisions of the charter are valid, and, on the face of it, the resolution of the board was a valid and proper resolution. Certainly, the Park Commissioner, acting administratively, not only had a right to rely on such resolution but was bound to obey it. Furthermore, the Triton Construction Corporation was entitled to rely thereon in accepting the award of the contract to it and in proceeding with the work thereunder. (Applications for temporary injunctions and stays have been denied by the court, and the work under the contract is being performed along with the work of other contractors.)
The burden was not upon the Board of Estimate to justify its action. Presumptively the resolution was valid and sustainable. (See 62 C. J. S., Municipal Corporations, § 208; Matter of Kaelber v. Sahm, 281 App. Div. 980, affd. 305 N. Y. 858; Matter of Tuller Constr. Co. v. Lyon, 257 N. Y. 206.) The burden of pleading and proof in connection with a charge of arbitrariness and caprice on the part of the board was upon the petitioner. In my opinion, as Mr. Justice Stevens has pointed out, it failed to sustain such burden. In any event, even *380if we were to assume that, on the papers as a whole, there are triable issues of fact which might have a bearing upon whether or not the board acted arbitrarily or capriciously in adopting the resolution (which, however, I submit could not properly be raised in the first instance by a reply), nevertheless, a remand for a trial of the same would not be in order. Arbitrariness or caprice on the part of the board would render its resolution merely voidable. Thus, any ultimate determination should not, under the circumstances here, be given retroactive effect to deprive Triton Construction Corporation of its rights. Furthermore, on the showing here, there would be no justification in jeopardizing the continuance of the work on the public improvement. Thus, under the circumstances, the petitioner does not show a clear right to mandamus relief, and the proceeding should be dismissed (cf. People ex rel. Belden v. Contracting Bd., 27 N. Y. 378; Matter of Luboil Heat & Power Corp. v. Pleydell, 178 Misc. 562 [Shientag, J.]; Matter of Limitone v. Galgano, 21 Misc 2d 376; Matter of Epstein Co. v. City of New York, 31 Misc 2d 759; also Matter of Coombs v. Edwards, 280 N. Y. 361, 364) but without prejudice to such other remedies, if any, that petitioner may have against Executive Order 93-S, or to restrain or review any action on future proposed contracts which may be based on such order.