begun by Andrew J. Kimball, as a tax-payer of the city, to restrain defendants from executing said contracts. L. Laflin Kellogg, for the motion. Francis Marion Scott, opposed. VAN HOESEN, J., (after stating the facts as above.) Had the defendants been acting in their own private business, there is no doubt that they could have permitted the offer made by the Electric Construction Company to be withdrawn, but, acting as public officers, they could not lawfully forego the right that the city had acquired to insist that the company should either carry out its offer or forfeit the amount that it had deposited as security. When the bid of the Electric Company, with the certified check that accompanied it, passed into the hands of the commissioner of public works, the statute prescribed the disposition that should be made of the one and the other. The bid was to be publicly opened by the officers, who are the defendants in this action, and the contract was to be awarded to the lowest bidder. If the lowest bidder should refuse to execute, that is to say, sign the contract within five days after notice that it had been awarded to him, the amount of the certified check that he had deposited as security was to be forfeited, and retained by the city as liquidated damages, and paid into the sinking fund. No other disposition of the bid and the check was lawful. It has been decided that where the statute requires a public officer to award a contract for public work to the lowest bidder, he may be restrained by injunction from giving it to any one else, (2 High, Inj. §§ 1251, 1252,) and principle requires that the highest bidder should not be made the lowest bidder by the withdrawal of the lower bids. It matters not how honestly the officials acted, (and no one questions the absolute integrity of the distinguished gentlemen who are the defendants,) their consent to the withdrawal of the bid was in conflict with the statute. Now, who has the right to complain of their action? The act of 1887 (chapter 673) provides that an action to prevent any illegal act on the part of any officers of a municipal corporation may be brought by any person whose assessment shall amount to a thousand dollars, and who shall be liable to pay taxes on such assessment to such municipal corporation. The object of the action is "to prevent waste or injury to the property, funds, or estate of such municipal corporation." The plaintiff alleges in his complaint that he possesses the qualifications mentioned in the statute, and there is nothing before me to cast doubt upon his allegation. But in all applications of this character it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end. This is a familiar rule, and it was applied by Judge VAN BRUNT in Hull v. Ely, 2 Abb. N. C. 440, a case that strongly resembles this. There Mr. Hull, as a tax-payer, brought an action against Mr Ely, to prevent waste of the city's property through a sale of certain ferry franchises in a manner that caused a loss to the city treasury; but Judge VAN BRUNT denied an injunction, because, to use his own language, “it is apparent from the circumstances surrounding this case that the plaintiff has not commenced this action to protect his interests as a tax-payer, but that the real parties in interest are the persons now using the ferry franchises, and consequently he has no right to call upon the court for the exercise of its equity powers." I find in the papers before me much that casts suspicion upon the bona fides of the present action. In saying this, I feel it my duty to add that I do not mean to impute a bad motive to the plaintiff's attorney, who has been retained, I suppose, because his good name lends respectability to any cause of which he is the advocate. The facts stated in the complaint constitute a good cause of action, and, if the plaintiff were really seeking redress, would warrant the granting of an injunction; but, as I have said, it is my duty to know that the plaintiff is honestly protecting his interests as a tax-payer, and that he is not resorting to this action for the purpose of forwarding the operations of the persons who compose the Electric Construction Company. From the papers before me it is obvious that this action was well under way before the plaintiff had any connection with it. Somebody had sufficient interest in the subject to employ an attorney and to prepare many of the papers before the name of Mr. Kimball any where appears. The original plaintiff was, as I find, William B. Lynch. Exactly when Mr. Lynch lost his interest in protecting the property of the city from waste, I am unable to discover, but it must have been about the 7th or 8th of June. Though some proceedings were taken in the name of Lynch after the 8th of June, the summons bearing the name of Kimball is dated June 7, 1888. The complaint is all in type-writing, except the name of the plaintiff, which was evidently inserted with the pen after the complaint had been completed. The conclusion seems to be a fair one that, having got the papers all ready, the real party in interest was compelled to look around for a plaintiff. From the fact that the complaint was not verified until the 12th of June, it is not unreasonable to infer that the search was a long and tedious one. These circumstances are all inconsistent with the idea that the plaintiff began this action. He was brought into it by somebody who had a private purpose to accomplish, and who, for his own advantage, is attempting to pervert the statute of 1887 to a use never contemplated by the legislature. At the argument it was charged that the Electric Construction Company was the real promoter of this litigation. For some purpose of its own, it repeatedly applied for leave to withdraw its bid. The affidavits relied on to sustain the injunction are chiefly those made by its vice-president. Except the statement of the vicepresident, there is nothing to show that the company possesses any capital, or that it is able to carry out any contract. It has no plant, and the statements contained in its bid, that "its existing central station is in Thirty-Fourth street, between Ninth and Tenth avenues," is not proven to be true. I am satisfied that Mr. Lynch, for reasons satisfactory to himself, declined to act as plaintiff, and that Mr. Kimball was then induced to act as his substitute. The action lacks the essential element of sincerity, and for that reason, in the exercise of a judicial discretion, I dissolve the preliminary injunction, and deny the motion to continue the injunction, with $10 costs. (55 Super. 516) BUFORD . NEW YORK IRON MINE et al. (Superior Court of New York City, General Term. May 7, 1888.) 1. WRITS-SERVICE WITHOUT THE STATE-PUBLICATION. Under Code Civil Proc. N. Y. § 440, providing that an order directing service of the summons without the state or by publication must direct service by publication, or, at the option of the plaintiff, by personal service without the state, and must also direct the mailing of copies, etc., an order for personal service without the state, which contains no direction for publication, should be vacated. 2 APPEAL-REVIEW-OBJECTIONS WAIVED. An objection to an order to show cause that it does not fix the time for its service, as required by Code Civil Proc. § 780, is waived by an adjournment and subsequent argument upon the merits. Appeal from special term; TRUAX, Judge. In this action of Richard G. Buford against the New York Iron Mine and others an order authorizing personal service without the slate was made, which contained no direction as to publication. An order to show cause why it should not be set aside was made, but this order did not fix any time for its service, and a preliminary objection was made on that ground. The hearing was adjourned, and the motion was afterwards argued on the merits, the special term rendering the following opinion, vacating the first order "I think that the preliminary objection has been waived by the adjournment. Section 440 is mandatory, and must be complied with in order to give the court jurisdiction. It differs somewhat from section 135 of the old Code, and for this mons * * * * reason, Abrahams v. Mitchell, 8 Abb. Pr. 123, is not an authority; nor is Well v. Martin, 24 Hun, 645, an authority for plaintiff. In the Weil Case the plaintiff simply did not wish to avail himself of the option given by section 440, and therefore did not put into the order the provision for personal serv ice." Plaintiff appeals. Code Civil Proc. § 438, provides that "an order directing the service of the summons upon a defendant without the state, or by publication, may be made in either" of the cases therein enumerated. Section 439 relates to the papers on which the motion shall be heard, and section 440 provides: "The order * * * must direct that service of the sum* * be made by publication thereof in two newspapers, *** for a specified time, not less than once a week for six successive weeks; or, at the option of the plaintiff, by service of the summons, and of a copy of the complaint and order, without the state, upon the defendant. * * *It must also contain either a direction that on or before the day of the first publication the plaintiff deposit in a specified post-office one or more sets of copies of the summons, complaint, and order, each contained in a securely closed post-paid wrapper, directed to the defendant, at a place specified in the order, or a statement that the judge, being satisfied by the affidavits upon which the order was granted that the plaintiff cannot with reasonable diligence ascertain a place or places where the defendant would probably receive matter transmitted through the post-office, dispenses with the deposit of any papers therein." Section 780 provides that notice of motion shall be eight days, "unless the court, or a judge thereof, * * * makes an order to show cause, * * * and in the order directs that service thereof less than eight days before it is returnable be sufficient." Argued before SEDGWICK, C. J., and O'GORMAN and FREEDMAN, JJ. Roger M. Sherman, for appellant. Barlow & Wetmore, for respondents. FREEDMAN, J. As both parties have conceded that an adjournment of the motion was had, and that the motion was argued below on the merits, the preliminary objection raised below should not be considered on the present appeal. The merits of the motion depend upon the construction of section 440 of the Code of Civil Procedure. The point that the order which was vacated contained no direction whatever as to a publication of the summons, but only an authorization for personal service without the state, was passed upon in Ritten v. Griffith, 16 Hun, 454, and decided adversely to the appellant. The case referred to was distinguished in Weil v. Martin, 24 Hun, 645, and in O'Neil v Bender, 30 Hun, 204, but it has never been overruled. If the point had never been squarely passed upon, I perhaps could persuade my self to reach a different conclusion. But it has been expressly decided by a general term of the supreme court, and no sufficient reason has been shown why this court should not follow the decision then and there made. The question is a close one, and it can be set at rest only by the court of appeals, and it should be submitted to that tribunal for final determination. Abrahams v. Mitchell, 8 Abb. Pr. 123, arose under section 135 of the former Code, the language of which differed from the language of section 440 of the Code of Civil Procedure. The order appealed from should be affirmed, with $10 costs and disbursements. SEDGWICK, C. J., and O'GORMAN, J., concur. (55 Super. 494) FITCH 0. MAYOR, ETC., OF NEW YORK et al. (Superior Court of New York City, General Term. May 7, 1888.) 1. MUNICIPAL CORPORATIONS-CONTROL OF STREETS-CONSTRUCTION OF CAR TRACK. Where a street car, from which plaintiff had alighted at a turn-table, was so negligently turned before plaintiff could move a safe distance away that it struck and injured her, the city's permission to locate the turn-table so that a part of a car in turning would pass over the sidewalk did not render the city liable, as the accident would have happened had the location been such that the car would turn wholly between the curbs. 2. SAME-LOCATION OF TURN-TABLE-INTERFERENCE WITH SIDEWALK. The railway company having the right to a turn-table in the locality, the city in fixing the place exercises a discretion which is not reviewable by the courts, the sidewalk having no right to freedom from encroachment superior to that of the carriage-way. Appeal from jury term. Action by Abbie C. Fitch against the Mayor, etc., of South Ferry Railway Company, for personal injuries. ment, and the city appealed. New York and the Argued before SEDGWICK, C. J., and FREEDMAN, J. Henry R. Beekman and D. J. Dean, for appellant. Edwards S. Clinch, for respondent. SEDGWICK, C. J. The action was for damages for personal injuries caused, as the complaint alleged, by the negligence of the appellant. The appellant's co-defendant was a street-railway company using horses, and called the "South Ferry Railway Company." It had a terminus at or near the corner of Church street and Vesey street. In Church street, at the terminus, a turn-table was inserted. In the ordinary course of things a car would go upon this turntable. Passengers would step from the platform of the car to the sidewalk. The car would then be turned. In turning, the platform of the car would move over the sidewalk, overreaching a distance of two or three feet. The plaintiff had been a passenger on a car of the company. She had alighted on the sidewalk. The car had been so negligently turned that the platform had struck her before she could move a safe distance. She had been knocked down, and received severe hurts. There is no doubt that the company was liable. The question on this appeal relates to the liability of the city. The act incorporating the company (Laws 1874, p. 697) provided “that said railway shall be subject to such reasonable rules and regulations as the common council of the city of New York from time to time may prescribe." The city charter (Laws 1873, c. 335) provided that the common council shall have power to regulate the use of streets by cars, etc., to regulate the use of sidewalks, to prevent encroachments upon and obstructions to streets, and to authorize and require the commissioners of public works to remove the same; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, "except the temporary occupation thereof during the erection, etc., of a building," etc. The learned counsel for the respondent claims that using the sidewalk as a place over a part of which the platform of the cars would move was an obstruction or an encroachment of the sidewalk, as it was continuous, although intermittent, to the constructive knowledge of the city. It is not necessary, for the purposes of this decision, to deny the validity of the position. The further argument is that under the statutes that have been cited it was the duty of the city to have made some regulation, or to have required that the company should not operate its road so as to involve the moving of the platforms of cars over the sidewalk. Whatever power or duty the city had or was under, neither was of a kind that could impair the statutory right of the company. The complaint and the charter show that the company had a right to the terminus at or near Church and Vesey streets. The city, at the most, could only regulate the employment of their right. The complaint did not suggest, nor did any claim of the plaintiff upon the trial, that the city had the power to prevent the use of a turn-table at all, or, what would have been the same in effect, of cars to be drawn by one horse, or that did not need to be turned. The case does not present the point. The proposition is that the city should not have allowed the incumbrance of the sidewalk. As to this it must be said that the city was forced to yield to the right of the company to have the turn-table at some point there, either in the roadway so far that, in turning, the platform would not be at all over the sidewalk, or at a point nearer the sidewalk. In either case there would be an obstruction of the highway. The sidewalk has no right to a freedom from encroachment superior to the street-way's right. The city was called upon to exercise a discretion of a judicial nature as to the place where the obstruction should be. This exercise of discretion cannot be reviewed by a court. I further think these considerations are not relevant to the case here, as it appears that the company had a right to a turntable either where it was, or at some other place in the street-way. The acci dent did not happen because the place where the plaintiff alighted was a sidewalk. It would have happened if the turn-table had been so far from the curb that the plaintiff would have stepped upon the street-way. For these reasons the city was not liable in this action. Judgment reversed, and new trial ordered, with costs to abide event. FREEDMAN, J., concurs. (55 Super. 511) CALLANAN et al. v. GILMan. (Superior Court of New York City, General Term. May 7, 1888.) 1. COSTS-DENIAL IN COURT OF APPEALS-COSTS IN GENERAL TERM. Where a judgment is modified by the court of appeals without costs, a motion for satisfaction of judgment upon tender of costs at special term, without the costs at general term is properly denied; no proof being given that costs in the general term were meant to be denied as well as costs in the court of appeals. 2. JUDGMENT-MOTION FOR SATISFACTION-TENDER OF AMOUNT DUE. On a refusal to satisfy a judgment on tender of the amount due, a motion for an order of satisfaction is the proper remedy. Appeal from special term. Motion of George F. Gilman for satisfaction of judgment on remittitur from court of appeals in the case of Lawrence J. Callanan and James A. Kemp against George F. Gilman, it being a bill for injunction. See 14 N. E. Rep. 264. Motion denied, and defendant appeals. Argued before SEDGWICK, C. J., and FREEDMAN and O'GORMAN, JJ. FREEDMAN, J. At special term the plaintiffs had judgment for injunctive relief, with $164.20 costs. The general term affirmed the judgment, with $87.29 costs. On defendant's appeal the court of appeals modified the judg ment. 14 N. E. Rep. 264. The material parts of the remittitur are as follows, viz.: "Whereupon the said court of appeals * * * did order and adjudge that the judgment of the general term of the superior court of the city of New York appealed from in this action to this court be and the same is hereby modified as stated in the opinion, without costs. And it is also further ordered that the record aforesaid and the proceedings, in this court be remitted to the said superior court, there to be proceeded upon according to law. Therefore it is considered that the said judgment be modified as stated in the opinion, without costs, as aforesaid." On reading and filing the remittitur an order was made at special term making the judgment of the court of appeals the judgment of this court, and modifying the original judgment accordingly, without costs in the court of appeals. The modification related to the extent of the injunctive relief granted by the judgment. The defendant thereupon tendered to the plaintiffs the sum of $164.20, with interest, as and for the costs of the original judgment, but declined to pay the costs of the general term judgment; and the tender having been for that rea |