I concur with Mi*. Justice Scott. To sustain this injunction the plaintiff m,ust bi'ing the official act which he seeks to enjoin within the provisions of section 51 of the General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29), which provides that “an action may be maintained * * * to prevent any illegal official *670act on the part of any such officers * * * or to prevent waste of injury to or to restore and make good any property, funds or estate of such * * ■■ municipal corporation.” . This action is. based upon the allegatign. that if the board of estimate and apportionment now entertain this application it would be committing an “ illegal official act.” The board of estimate and apportionment have proceeded as required by section 74: of the charter (Laws of 1901, chap. 466, as amd. by Laws of 19.05, chaps. 629, 630). They have also assumed to proceed according to the provisions of section 92 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1893, chap. 434), carrying on the proceedings under these two acts at the same time. The only ground upon which the plaintiff relies and upon which the court, below (hi. T. L. J. Dec. 10, 1909) has held that a further consideration of this application would be an illegal official act of the board of estimate and apportionment is that the board had to' some extent considered the application before the day fixed for a . public hearing under section 92 of the Railroad Law. I am inclined to agree with Mr. Justice Scott that the provisions .of the charter established a. substitute for and a repeal pro tatito of the - General Railroad Law; but I also think that the mere fact that the board had given to the subject some consideration-and had even- expressed an approval of the application was not such a violation of the provisions ' of the General Railroad Law as would make the act of the board illegal in further considering the .application. Here are two acts which substantially cover the same general subject. By both acts certain preliminary steps are required before the board can act. The board was required to give public notice of the time and place when the application would be first considered. If for any reason the board had omitted to give such public notice or the notice was not for sufficient time and the board, discovering its mistake, had caused a new notice to be given fixing a time and place as required by the statute, I do .not think the board .would be divested of jurisdiction to consider the application at the time and place named because it was not the first hearing or because at the first hearing the board had expressed an opinion as to whether or not the application should be granted. If such a mistake had been made'at the beginning óf the official term of the board of estimate and apportionment the result Vfould be, if this contention was sustained, that the subject *671could not be considered again during the official, term of the members of the board, but it would have to be postponed until a new board came into office. Whatever impropriety there may be, if there is any, in this proceeding as presented by the papers I cannot see that anything that had been done by the board took away from it its power to act upon the application after they had given the notice required by the Railroad Law and had proceeded as required by the charter.
I, therefore, concur in the reversal of the order.
Houghton and Scott, JJ., concurred.