I can find no principle of law to sustain the order made at special term. It is not questioned but that the plaintiff had done work under the contract with the city for the enlargement of the Battery, which at the contract prices, with the interest added from the time when the work should have been paid for, was equal to the judgment. It is true that the contract was not performed, but the city may rescind an entire contract, or may waive a full performance and pay for the work actually done. The city also would be legally liable for the contract price of the work done, and for damages in case the non-formance of the contract was occasioned by its act.
The action is brought upon this alleged fact. The papers disclose a report of a - committee of the common council of New York upon the work, going very far to sustain the plaintiff’s claim ; but it seems to me that the time for the argument of this question is passed. The common council authorized the comptroller to settle the claim in suit. The comptroller did settle it. The corporation counsel, by authority of the comptroller, allowed the plaintiff’s claim for work actually done at contract prices. The plaintiff abandoned his claim for damages, and also his claim for the materials in the old Battery wall. The referee, upon the agreement of the parties, made his report in accordance with this agreement, and judgment was ordered by Justice Sutherland, upon notice, as required by the law of 1865. There is no irregularity; there is no fraud; there is no collusion; there is no mistake of facts claimed or shown by the papers. The city has compromised a claim in suit, and the claim as thus established, has passed into a judgment, and it is proposed to set aside this judgment for the sole reason that the new *394corporation counsel believes a better result could be obtained by continuing the litigation to the end in the courts.
The city cannot avoid a settlement fairly made with the plaintiff upon such ground.
The order should be reversed, with costs.
Sutherland, J., concurred.
Clebke, J., dissented.