Preliminarily it is objected, that this motion cannot be made by any one, except by the counsel to the corporation ; that another attorney cannot appear without a sub*77stitution; farther, that no one hut the counsel to the corporation could make the mation, as the statute of 1863 gave .that exclusive right to him, and made it his peculiar duty; that the act of 1859 which allowed the comptroller to intervene and move to set aside a judgment that he had reason to believe was obtained by collusion, or was founded in fraud, was unconstitutional ; if not, that it was repealed by the act of 1863. L. 1863, p. 409.
I have carefully considered all these objections, and some others, and think they cannot prevail.
[The learned judge, after expressing the opinion that the order was right on the merits, discussed the constitutionality of the law at great length, concluding against it on the ground that the legislature had no right to appoint a board to arbitrate on a claim against a municipal corporation, and saying that the principle on which such boards were appointed in respect to claims against the State was inapplicable to municipal corporations, which might be sued, and questioning the doctrine of Darlington v. Mayor, &c. of N. Y., 31 N. Y. 164, on this point.
Hunt, J.,delivered a contrary opinion on the merits and on
the question of constitutionality, and relied on Darlington v. Mayor, &c., as settling that it was entirely competent for the legislature to direct that the public property of the city not held in trust for specific uses, be sold, and the proceeds applied to any public or municipal use within the city.*
By the Court,all concurring except Hunt, J., the order
was affirmed, without passing on these questions, on the ground that the order was in the discretion of the supreme court, and could not be reviewed here.
Order affirmed, with costs.
Compare People ex rel. McLean v. Flagg, 46 N. Y. 401.