The People and Flagg a. Lowber.

ercised by them. The duty that was executive was making the contract, receiving the deed, and making the payment. This duty was, by the resolution, confided to the comptroller, and, so far as any thing appears before me, I see no executive act performed, or attempted to be performed, by the Common Council in this matter.

I do not understand this section as taking from the Common Council the right to control, by legislation, the discretion of the officer, in selecting themselves the site, and fixing the price at which the purchase is to be made; but, after those things are settled by an act of legislation, they cannot, either by a committee or otherwise, do any thing to carry into effect that legis lation. Such powers must be exercised by the head of the department. The want of an appropriation, out of which this money was to be paid, is not a ground for maintaining this action. It affords no ground to the attorney-general to proceed against the defendants, to restrain them in the manner asked for in the complaint. These are all the grounds on which the plaintiff's counsel seek to restrain the defendants, except the alleged fraud on the part of the corporate authorities. If any such fraud is charged, equity can give relief, on a proper application. The corporation might undoubtedly apply, and, where the Common Council is so frequently changed in its members, the fair supposition is, that a successive body would require such a proceeding to be commenced, if they believed fraud had existed. There is still time for the present Common Council to institute proceedings, if any fraud has been discovered. In the absence of proceedings on their part, I have, for the purposes of this action, conceded that the attorney-general might commence the action. It is, therefore, necessary to examine the complaint, to ascertain whether any such fraud is charged in the transaction, as would vitiate the proceeding.

Where the whole foundation of the action rests upon the fraud, such fraud should be charged as the ground of the action. If, without such allegations, the people, by the attorneygeneral, have no right to interfere, then it should be shown by the complaint that the parties had been guilty of acts of fraud, which would authorize the court to restrain the collection of a judgment that appears to be regular.

The complaint shows the proceedings by the Common Coun

The People and Flagg a Lowber.

cil, in authorizing originally the purchase by the comptroller; the presentment of the deed by Lowber, and demand of the purchase money; the action brought by Lowber, and recovery of judgment therein; that such action was referred by consent of parties; that an execution was issued thereon; that the price to be paid therefor was double the value of the property; that the title was defective; that the counsel to the corporation reported the title to be good; that the land was incumbered by a mortgage; that the counsel for the corporation refused to take any measures for the relief of the corporation; that an application was made to the corporation, and they passed resolutions upon the subject, which the complaint avers to have been passed by them regardless of their duty; that the mayor suffered the resolutions to become a law, without signing or vetoing the same, surreptitiously; that the action was referred by the counsel, and judgment suffered through neglect; that the relator applied to the court to have the judgment opened, which was opposed by the counsel to the corporation, and Lowber, on the ground that the relator had no right to interfere, or to be heard upon such motion; and that an order was made by the general term, providing for bringing this action, and for giving security thereon. It appears to me that these facts, as stated in the complaint, do not show such facts as will warrant the court in charging fraud upon the Common Council. No fraud is averred. They are charged with neglect of duty, in refusing to apply to set aside the judgment, and with proceeding in violation of the provisions of the charter, but no fraud is charged against them, and, under this complaint, no fraud could be proven by which the plaintiffs could succeed.

I do not consider that the discretion of the Common Council in legislation can be controlled by the courts. If they have. authority to legislate, their discretion as to what should be passed or rejected, is a matter exclusively for themselves. They may pass improvident laws, they may make improvident purchases, they may pay for land prices which some would think exorbitant, but neither the attorney-general nor a tax-payer has a right to call them before the courts, to show that their legislation was discreet, that the prices paid by them did not exceed the actual value, or that it was wise to pass the ordinances or resolutions they may adopt.

The People and Flagg a. Lowber.

Nor are the acts of the counsel any ground for maintaining this action. It was his duty to examine the title, and comply with the directions of the Common Council so far as those directions did not conflict with the law. His consent to refer the cause of Lowber against the corporation, even if ill-advised, was not illegal, but was expressly authorized by the Code, which provides for the reference of all causes by consent. His objections to the motion in the Supreme Court, to open that judg ment, were made in pursuance of a resolution passed by the Common Council, after full knowledge of the transaction in regard to the recovery of the judgment, and of a resolution directing him to take measures to enforce payment of said judgment, which was passed by the Common Council, and approved by the mayor, in August, 1857.

This deliberate action of a subsequent Common Council, without any charge of fraud on their part, must be treated as a ratification of the action of the previous Common Council in authorizing the purchase, and the counsel to the corporation would have departed from the line of his duty if he had, for any supposed want of discretion on the part of the Common Council, in passing the resolution of purchase, or improvidence in making the contract, attempted to disobey such resolutions.

The heads of departments do not hold their places independent of the legislation of the Common Council, and where such legislation is not in violation of law, they have no right or power to refuse obedience to such legislation because they may deem it unwise or improvident.

There is no difficulty, on the part of the Common Council, in instituting this action in the name of the corporation, if they believe the contract to have been made fraudulently or illegally; and when two successive Common Councils have refused to make any attempt to set aside the contract, and one has expressly directed the counsel to take measures to compel the payment of the money, the acts of the counsel in carrying out those resolutions cannot be condemned.

My conclusions are, that if it be conceded that the attorneygeneral 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.

Stelle a Palmer.

That 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.

That the resolution passed by the Common Council, authorizing the comptroller to make the purchase of the land in question was within their powers, as conferred by the charter.

That the Common Council 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.

And that, in passing such resolution, they did not violate any of the restrictions contained in the charters of the city.

The motion to dismiss the complaint is therefore granted.

STELLE a. PALMER.

New York Superior Court; Special Term, September, 1858. ARREST.-VARIANCE BETWEEN AFFIDAVITS AND COMPLAINT.—

REFERENCE.

It is not a ground for vacating an order of arrest, that the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient, and disclose a ground of arrest which is consistent with the allegations of the complaint.

In what case a reference may be ordered, to ascertain the facts involved upon a motion to vacate an order of arrest.

Application to discharge an order of arrest.

The facts appear in the opinion.

HOFFMAN, J.-It is objected, by the defendant's counsel, that the complaint varies entirely from the affidavits, as to the case made; that, by the former, the plaintiff asserts a cause of action. for money received upon the original transaction, or upon the note taken at the adjustment in May, 1858; while the affidavits

Stelle a. Palmer.

present a case of fraud, in the investment of the money in fic titious securities, and palming them off, or of false and fraudulent representations as to the solvency of the indorsers of the

note.

If this was precisely the case, the plaintiff would have presented his cause exactly as he ought to do. The cause of action in the complaint would be independent of, and separate from, the causes of arrest, and the latter need not be stated in the pleading.

But the complaint does, in fact, attempt to set forth, not merely the separate cause which would sustain an action, upon the note for example, but also the facts tending to sustain an

arrest.

I do not think that this defect, or impropriety of pleading, forms a ground for discharging an arrest, when the affidavits make a case warranting it. A motion to correct the complaint may be the proper course. (Eddy a. Beach, 7 Abbotts' Pr. R., 18.) The original affidavits were clearly sufficient.

Motion for a reference.

The case was then examined upon affidavits and counter-affidavits, and the judge determined to discharge the order.

Before the order was entered, a motion was made for a reference, under section 271 of the Code.

HOFFMAN, J.-I have not known a case in this court, in which, upon a motion to discharge an order of arrest, a reference has been ordered, under the third subdivision of section 271 of the Code. The power to make such a reference is probably not to be questioned (see 6 Abbotts' Pr. R., 320, note); but the case ought to be very special, such as where the judge himself cannot come to a satisfactory, definite conclusion upon the facts as made out. Sections 204 and 205 of the Code enable a plaintiff to meet the defendant's case by counter-affidavits, and the question is settled upon such partial trial, by determining the probable truth, as the matter is thus presented. By such a trial the parties must abide, except, as before observed, upon a strong and peculiar case.

There is nothing in the case before me of such a nature.