I doubt whether the commissioners, under the power which the statute gives them to purchase the charter of the East *406River Bridge Company, have any authority to make part pay-. ment for that charter by binding themselves to construct the. new bridge in a particular form. I think the statute contemplated a purchase for money, and that only. But this view need not prevent me from concurring'in the result reached by. my associates. If it be correct, the provision in the agreement as to the form of the structure is not enforcible by any one. Its presence is harmless, and affords no ground for judicial interference at this time, because no one is trying to enforce it. Indeed, it is harmless for another reason. The commissioners have unquestionable power to build the' bridge in the stipulated form, independent of any agreement on the subject. While, therefore, I concur with my brethren on all other points, and agree that the preliminary injunction should be' vacated, I deem it proper to add these remarks, lest I should seem to sanction the idea that the. agreement has the effect. of conferring-’ any right upon the East River Bridge Company, so far as it provides for elevated railroad accommodations of a particular kind on the new bridge.
Order reversed, with ten dollars costs and disbursements, and motion for an injunction denied, with ten dollars costs.