¶1I concur in the opinion of the presiding justice, that plaintiff is entitled to a rescission of the contract upon the ground of excusable mistake on its part.
¶2The mistake was discovered on the seventh of August, and the attention of the mayor and several of the city council was called to it upon that day. The resolution awarding the contract to plaintiff, although adopted by the city council on the evening of August sixth, was not approved by the mayor until August ninth. I think that the contract could not be said to be awarded until then. I think also that the plaintiff waived the preparation of the formal written contract and that it is not entitled to relief because no such contract was prepared and tendered for execution. I am not prepared to hold, however, that although entitled to be relieved from its contract, it is entitled to the return of its deposit. Defendant, the city of Newburgh, was authorized by law to require such deposit. (Laws of 1907, chap. 203, tit. 3, § 23.) The acceptance of the bid by the common council and the approval of its resolution by the mayor gave rise to a condition exactly within the terms of the statute. Until relieved from its obligation, either by the action of the parties or by the judgment of a court of competent jurisdiction, it was plaintiff’s duty “to take and enter into said contract.” If relieved in either manner, and certainly if relieved in the latter way, the sum must be deemed liquidated damages for its default. (City of New York v. Seely-Taylor Co., 149 App. Div. 98; affd. on opinion of McLaughlin, J., 208 N. Y. 548.)
¶3I would be recorded, therefore, as concurring in the result, only so far as the rescission of the contract is concerned.
¶4Judgment reversed and new trial granted, costs to abide the final award of costs.