Notwithstanding the recitals of the new contract, I think it is fair to say that all that, was in fact done, and all that was. attempted to .be done, was to permit, and to compel the contractor to complete bis former valid contract in a proper manner satisfactory to the city. • . • ' ' '
There is no suggestion of collusion or fraud. The pavement which had been laid was defective. The new contract did not provide for the payment of any greater sum of money than was due under the old contract when it should have been fully performed. The amount stipulated by the new contract was the- exact amount ' remaining due on the old one. All that was done was simply to bring about an adjustment of a claim under the former concededly valid contract. " This adjustment might have been made by accepting the defective pavement at a reduced price, or by compelling the pavement to bernade good according to the contract, or as good as that provided by the contract and then paying the stipulated sum.
. It seems to me that such an adjustment is within the powers of the comptroller, and that, in the absence of fraud" or bad faith, his acts in such respect should be upheld.
The injunction should not have been granted and the order should he reversed.
Order affirmed-, with ten dollars costs and disbursements. Order filed.