In a proceeding under article 78 of the Civil Practice Act, the Special Term, on May 31, 1949, made a final order: (a) which granted petitioner's application by annulling a resolution of the town board of the town of New Windsor in Orange County pursuant to which a certain contract had been awarded to E. Totonelly Sons, Inc., and by directing the town board to convene and award the contract to petitioner; and (b) which denied petitioner's further application to join the said Totonelly corporation, its rival and successful bidder, as a party to the proceeding. The town officials appeal from said order insofar as it grants petitioner's original application. Order, insofar as appealed from by the town officials, reversed on the law, without costs, and the proceeding remitted to the Special Term for rehearing de novo after the service upon E. Totonelly Sons, Inc., of a written notice and a copy of the petition and supporting papers as provided in section 1289 of the Civil Practice Act, and after the service of an answer or a default in answering on the return date. (See decision in companion appeal, Matter of Cestone Bros., v. Solowinski, ante, p. 970, decided herewith.) After a full opportunity has been accorded to the successful bidder, E. Totonelly Sons, Inc., to be heard in this proceeding, the Special Term can then determine whether there has been unlawful denial of an award of the contract to petitioner and whether, in the exercise of its discretion, a peremptory order shall issue. In view of the decision by the Court of Appeals in Matter of Dictaphone Corp. v. O'Leary ( 287 N.Y. 491), resort to a proceeding under article 78 of the Civil Practice Act, may be had by a party who is the lowest bidder and who asserts that by illegal action of a board he has been denied the award of a contract. In the cited case the earlier decisions which hold that an unsuccessful bidder may not proceed against a public body by proceedings under article 78 were urged in the Court of Appeals in support of the dismissal of that proceeding, the Appellate Division having previously directed such dismissal in reliance upon such decisions ( 262 App. Div. 359). Nevertheless, with both bidders as parties to the proceeding, the Court of Appeals reversed the Appellate Division and directed the officials to proceed in accordance with the applicable statute, thereby reinstating the proceeding. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.