The People and Flagg a. Lowber.

$1230. We understand the parties not to differ as to this amount; or, at any rate, that they would adjust this deduction among themselves.

Judgment accordingly.

THE PEOPLE and FLAGG a. LOWBER.

Supreme Court, First District; Special Term, February, 1858. Again, Special Term, September, 1858.

PARTIES. TAX-PAYER'S ACTION.-MUNICIPAL CORPORATION.

An order requiring a bond is satisfied by an undertaking, if it is such as would be effective for the same purpose.

A judgment was set aside, and proceedings in the action stayed, on condition that within thirty days the moving party file and serve a complaint in a cross action, making such parties as he should be advised. On the twenty-ninth day, the complaint was filed and served on one of the parties made defendants, but attempts made to effect service on the other, both on the twenty-ninth and the thirtieth day, were unsuccessful.

Held, 1 That the conditions of the order, setting aside the judgment, were complied with.

2. That no new order, staying execution on the judgment, was necessary, but that, the conditions of the first order being complied with, the stay contained therein became operative.

Even if the attorney-general may bring an action in the name of the people, to restrain a municipal corporation, it can only be from committing a fraudulent or illegal disposition of the corporate property.

Such fraud must be distinctly charged in the complaint, where it is the foundation of the action.

That no fraud is charged in the complaint in this action, upon which the same can be sustained.

The Common Council of the city of New York may order land to be purchased for a market, notwithstanding the limitation in the charter, as to the yearly value of land which they may hold.

February. Motion to dissolve injunction.

This was an action brought by Azariah C. Flagg, the comptroller of the city of New York, as a tax-payer and corporator, to enjoin the execution of a contract-made between the defend

The People and Flagg a. Lowber.

ant Lowber and the other defendants in this action, and the city of New York-for the sale to the latter of certain real estate.

Lowber had brought an action against the city, upon that contract, to recover the purchase-money. In that action, he had obtained judgment for $199,910.71 against the city.

Mr. Flagg, the individual plaintiff in the present action, had, at special term, moved for and obtained an order in that action, setting aside the answer and subsequent proceedings, with leave to him to come in and defend, or to bring a cross action. (See the proceedings on this motion, reported 5 Ante, 325.)

Upon appeal to the general term, this order was substantially affirmed, with modifications. (See the decision, reported 5 Ante, 484.)

The order entered, upon the decision of the general term, was as follows:

TITLE OF THE CAUSE.

This cause, coming on to be heard upon the appeal taken by the plaintiff from the order in this action, made by Mr. Justice Roosevelt, on the 28th of September, 1857, and upon hearing James R. Whiting, Esq., of counsel for Azariah C. Flagg, and William Curtis Noyes and David Dudley Field, Esqrs., of counsel for the plaintiff in this action, no person appearing on behalf of the defendants-the Mayor, Aldermen, and Commonalty of the city of New York

It is ordered that the said order be modified, so that the answer and all subsequent proceedings mentioned in the said order be, and the same are hereby, set aside and vacated, provided the comptroller of the city of New York, or any other tax-payer or corporator who may be substituted in his place, shall, within thirty days after service of a copy of this order upon the said comptroller, or his counsel, file and serve an original complaint, as a tax-payer, corporator, or otherwise, on behalf of himself and others, setting forth such matters, and making such parties, and praying such relief in the premises as he may be advised, together with a bond, as hereinafter provided for; and, in the mean time, that all proceedings on the part of the plaintiff in this action be, and the same are hereby stayed. And if such action shall be commenced, then that all the proceedings in this

The People and Flagg a. Lowber.

action on the part of the plaintiff be, and the same are hereby stayed, until final judgment in the said action, to be commenced by the said comptroller, tax-payer, or corporator, as above authorized; provided, however, the said comptroller, tax-payer, or corporator, the plaintiff in such action, shall give security to the plaintiff in this action in the sum of five thousand dollars, by a bond, with two sureties, to be approved by a justice of this court, to pay to the said plaintiff in this action all damages which he shall sustain by reason of the commencement of and proceedings in such action, as is authorized by this order; the said damages to be determined by a reference upon summary application: provided, further, that if said action, so to be commenced, shall be decided against the plaintiff in such action, then the answer and subsequent proceedings in this action, and the judgment thereon, shall stand in full force, as if the answer and subsequent proceedings had not been vacated, except that the form of the judgment shall be so modified that the plaintiff shall recover the damages awarded, on his executing and delivering to the present defendants a warranty deed, in the form and with the covenants required by the agreement with the defendants, set forth in the complaint, free from all incumbrances, except as set forth in said agreement, and conveying a perfect title thereto, except as aforesaid; the form and mode of execution of said deed to be approved by one of the justices of this court-the title to be deemed good and satisfactory in this action, so far as it shall be pronounced so, in the action to be commenced under this order.

It is further ordered, that this order stand in place of the order appealed from.

The thirty days expired on the 30th of January, 1858.

On the 29th of January, the plaintiff filed his complaint, together with an undertaking in the amount required for the bond prescribed by the order, and served the complaint, with the summons, on the mayor; but attempts made, on that day and on the next, to effect a service on Lowber, were unsuccessful. On the 30th, the plaintiff obtained, from Mr. Justice Ingraham, a temporary injunction in the action, which the defendant now moved to dissolve.

The complaint was as follows:

The People and Flagg a. Lowber.

Supreme Court.

The People of the State of New York,

On the relation of Azariah C. Flagg, a corporator and tax-payer of the city of New York, on his own behalf, and on behalf of all other the corporators and tax-payers of said city who may conceive themselves aggrieved by the matters hereinafter stated, and who shall come in and contribute to the expenses of this suit,

against

Robert W. Lowber, and the Mayor, Aldermen, and Commonalty of the City of New York,

Complain and show to the court that the city of New York is a body corporate and politic, by the name of the Mayor, Aldermen, and Commonalty of the City of New York, capable of suing and being sued, and of taking and holding real estate, and alienating the same with the limitations hereafter stated. That the said the mayor, aldermen, and commonalty of the city of New York, by their respective boards of aldermen and councilmen, in their ordinary forms of proceeding on the 18th day of February, in the year 1857, passed through their said boards resolutions, of which the following are copies :

Resolved, That the comptroller be, and he is hereby directed to purchase without delay, for the use and purpose of a market, the property of Robert W. Lowber, comprising a block and part of block of ground, lying and being in the Eighteenth Ward, and bounded by Sixteenth-street, Avenue C, and the East River; together with the bulkhead in front thereof, extending from the centre line of Seventeenth-street; and the water front between the centre lines of said street as continued, for the sum of one hundred and ninety-six thousand dollars ($196,000), the corporation assuming the taxes and assessments unpaid thereon, in accordance with the proposition submitted to the comptroller by Robert W. Lowber, under date of November 6th, 1856, the property to be conveyed by good and sufficient warranty deed, free and clear of all liens and incumbrances, except taxes and assessments, upon the title to the said premises being approved by the counsel to the corporation. And the sum of one hundred

VOL VII-11

The People and Flagg a. Lowber.

and ninety-six thousand dollars is hereby appropriated for the purpose aforesaid. And provided the said taxes and assessments to be assumed by the corporation shall not exceed the sum of twenty-five hundred dollars.

Resolved, That the said premises, when purchased, shall be subject to the control and supervision of the commissioners of the sinking fund.

That the said resolutions were, it is alleged, on the same day presented to the mayor of the said city for his approval, who neither approved or disapproved thereof, but suffered the same to take effect by mere lapse of time.

That after the said resolutions had so become effective, the said Robert W. Lowber named therein applied to the relator and desired him to purchase the property named in said resolu tions, which the relator wholly declined to do, and never after either purchased the same or entered into any negotiation therefor.

That at the time of the passage of the said resolutions through the respective boards of councilmen and aldermen, and when the same became effective by the failure of the mayor to approve or disapprove thereof, there was no money in the public treasury of the city of New York belonging to the said mayor, aldermen, and commonalty, or subject to their disposition, or under their control, to answer any such appropriation.

That no provision had been made by law, nor has there been any since, to raise by tax, or in any other way, the funds necessary to make any such purchase.

That the persons who were then members of the said respective boards of aldermen and councilmen, who voted with the majority in each of the said boards, well knew that there was not money in the city treasury, or in the hands of the city chamberlain of the said city, legally applicable to meet the said appropriation.

That the said corporation, at the time of the passage of the said resolutions, were the owners of real estate in the city of New York, yielding to them a net annual income of one hundred thousand dollars and upwards.

That by their act of incorporation, and under their legal corporate powers, the said corporation have power and authority to take, receive, have, hold, and enjoy to them and their successors