This is an appeal from an order made at a Special Term, vacating a judgment in favor of the plaintiffs for $74,299.40, which was subsequently affirmed at the General Term of the first district. The action in which the judgment was obtained, was brought upon an award made by Judge Barnard, Lieutenant-Governor Alvord and Mr. Waters, under the act of the legislature hereafter mentioned. In 1858, the Croton aqueduct board advertised for proposals for constructing certain gate houses upon their works, for which the plaintiffs made an estimate, and were adjudged by the board to be the lowest bidders for the work. The common council refused to award the work to the plaintiffs, who thereupon commenced several legal proceedings against the city to enforce, their rights, one of which was an injunction restraining the city from giving the work to any other persons, and asking that the city be compelled to award the same to the plaintiffs. Proceedings were also instituted by the Attorney-General, and an injunction against the city procured by him. The progress of the city in building these works was effectually arrested, and the city applied to the legislature for the passage of an act enabling it to build *404the works in question. Those representing the city and those representing the plaintiffs, met each other in this new arena, to which the contest had been transferred, and, after various negotiations, agreed upon the passage of the act of April 16, 1860. The city being thus relieved from its injunctions and legal obstacles, proceeded at once in the execution of its work. The plaintiffs took measures for proceeding in the arbitration, by calling upon the city to appoint an arbitrator, which was done by the mayor, and information thereof given to the corporation counsel, and by themselves appointing one on their part. The two thus selected chose a third; a long and laborious hearing was had before the arbitrators, extending through several months and including many meetings, which resulted in a large award in favor of the plaintiffs. Written notice of hearing was served upon the mayor, the comptroller and the Croton board, but they did not attend.
The report of the referees was filed and an order of the confirmation entered, and a certified copy of the report served upon the comptroller, and payment of the award was demanded. Not being paid, a mandamus was applied for nearly a year after to compel its payment, which was denied, on the ground that no money had been appropriated for the purpose. (37 Barb., 440.) Afterward, an action was brought upon the award, an answer was interposed by the corporation counsel, the issue was carried to the circuit, was repeatedly noticed for trial, and, when reached on the calendar, was refused by order of 'the court. It was tried at great length before the referee, summed up by both parties, a report made in. favor of the plaintiffs, on.-which judgment was entered on the 13th of June, 1863. From this judgment no appeal was ever taken. Information of tliis judgment was communicated to the comptroller in July following, and at frequent intervals thereafter, when he was called upon for payment. On the 23d of July, 1864, the comptroller still neglecting to pay, an execution was issued upon the judgment. On the 23d of August, the present proceedings were instituted by the comp.trdiler under the act of 1859 (p. 1173, § 5), on the ground *405that the judgment had been obtained by collusion or founded in fraud. The questions arise upon the act of April 16,1860, which is entitled as follows:
“ An act to-facilitate the acquisition of land for a junction gate house, and to connect the same with the new reservoir and the city mains in the city of New York, and to provide for the settlement of claims for damages connected therewith.” Passed April 16, I860, three-fifths being present. .(Laws of 1860, p. 772.)
The first section' of the act authorized the Croton aqueduct board, in behalf of the city of New York, to acquire title to a certain piece of land therein particularly described. Sections.two and three contain provisions as to the mode of obtaining title and the appraisal of damages. Section four authorizes the construction of a gate house upon the lands so acquired, the construction of several branch aqueducts, and the laying of pipes or mains, through the Central park, the purchasing of materials and the completion of the work in such manner as the public interests may require. It proceeds in the following language: “ And for the purpose of adjusting and determining the damages that the contractors to whom the gate house and aqueducts specified' in this section were awarded by the Croton aqueduct board, on the 27th day of October, 1858, which they may be equitably entitled to recover of the city of New York, the same may be ascertained by three arbitrators, one of whom may be chosen by the mayor of the city of New York, and one by the parties claiming such damages, and the third shall be appointed by the two arbitrators chosen as aforesaid.”. The remainder of the section provides for the confirmation of the report and the payment of the amount thereof by the comptroller of the city. The fifth section provides that sewers or drains shall be built upon each side of the said branch aqueducts and the sixth provides that when the .aqueduct and sewers provided for shall be built, the portion of Ninety-second street authorized to be acquired shall be held by the city in the same manner as other public streets. Section seven enacts that the act shall take effect immediately.
*406It is claimed that this act is void under the provisions of section sixteen, article three of the Constitution of this State, which is as follows : “ Ho private or local bill which may be passed by the legislature shah embrace more'than one subject, and that shall be expressed in the title.” Under this section of the Constitution three questions are presented: first, is this a “ private or local bill ? ” and, second, does it embrace more than one subject ? and, thirdly, is that subject expressed in its title? It is by no means certain that the two questions first named can be answered affirmatively; in default of which the third question would not arise, and the law must be held free from objection under this constitutional enactment.
Preferring, however, to place my opinion on the third ground, I waive the discussion of the question whether the act in question is a private or a local bill. (1 Seld., 285; 2 Hill, 241; 3 Cow., 662; 14 Barb., 559; 32 H. Y, 377.)
In examining this act in its provisions and in its title, we find that the city of Hew York needed, for its Croton aqueduct department, the acquisition of certain lands; that it was necessary and was intended to build certain junction gate houses upon these lands, to connect them with the other mains or pipes in the city; and that certain claims for damages existed in relation to some or all of these subjects, which it was desirable there should be authority to settle in some manner different from that given or supplied by the general powers of the city corporation. There was, in the body and in the title of the act, a clear intimation that there was some provision for the settlement of damages, different from the ordinary mode of proceeding. Considering the corporation of the city of Hew York, either as a simple corporation or as a legislative body, it possessed the form of settling any claim for damages without the aid of this act. It could pay its debts, or it could be sued in the courts of law, and if any claim, legal or equitable existed against it, it could there be settled. An unusual provision was thus foreshadowed by the title. All the subjects-matter that I have named above are expressly referred to in the title of the *407act and in the body of it. By section four, the Groton aqueduct board was expressly authorized to construct a junction gate house upon the land acquired under this act, and also to construct such gate houses for the new reservoir through the Central park, as they should see fit, and this was the same matter referred to in the title, by the words “for a junction gate house.” By a subsequent portion of the same section, provision was made for the payment of damages to the contractors to whom the same gate houses had been awarded by the same aqueduct board, at a previous date, and in the title this matter was referred to by the words, “and to provide for the settlement of claims for damages connected therewith.” Claims for damages connected therewith, only, would refer to claims already in existence, as well as to future damages.
Section four provides for ascertaining and determining such past claims only. “ Connected therewith,” i. e. with the acquisition of lands, or with the building of gate houses, is applicable to the same subject, and embraces claims for damages arising out of, or connected with the building of such gate houses. The claim of Baldwin & Jaycox was for damages connected with the building of such gates. They claimed that, by a previous award, the Croton board had entered into a building contract with them for the construction of those very gates, and that, the contract having been finally awarded to another party, they were entitled to such an amount of damages as would have accrued to them in the form of profits had they been permitted to complete such gates. It would be hypercritical to say that this claim was not fairly embraced within the language of the title already quoted. That it would be so embraced, and that this settlement of damages is also incidental merely to the main subject of the act, will appear by a reference to a few authorities.
In Brewster v. City of Syracuse (19 N. Y., 116), an act was passed entitled “ An act for the relief of James Sey & Son.” This act authorized the common council to assess upon certain territory in the city of Syracuse and collect the *408sum of $600, and to pay the same, to James Sey & Son. The city of Syracuse had contracted with Sey to build a certain sewer, which he had completed according to the contract, and had received the full contract price. The city was by its charter prohibited from paying any compensation above the contract price, and could only do so by virtue of such special act. It will be observed that the title of this act-conveyed no intimation, either to the citizens of Syracuse or to the members of the legislature, that power was given to tax the inhabitants of that city, or that that city or any of its inhabitants had the remotest concern in the passage of the act. An act, the title of which was for the relief of James Sey & Son, could communicate no such information to the astutest mind. Upon an objection that this law was in violation of the constitutional restriction under discussion, this court held the objection not well taken, that the levy and collection of the tax and the payment of the same to Sey & Son, were parts of the same subject. Johnson, Ch. J. said: “The general subject is expressed in the title. The degree, of particularity with which the title of an act is to express its. subject, is not defined in the Constitution, and rests in the discretion of the legislature. 1 An abstract of the law is not required in the title, and its actual subject is in this law clearly and appropriately expressed.”
In The People v. The Supervisors of Orange (17 N. Y., 285), the constitutional requisition that any law for the imposition of a tax should distinctly state the object to which it is to be applied, was held to be satisfied by the declaration that the money was to be paid into the treasury to the credit of the general fund, although such fund was applicable to any object which the legislature might deem proper. This decision ignored all the detailed purposes to which the money might be applied, such as expenses of the legislature, of the courts, of the annuities payable to. Indians, and a great variety of subjects referred to on the argument of that case. - Although upon, a different provision of the Constitution, this decision is clearly germane to the pnestion before us.
*409In The People v. McCum (16 N. Y., 58), the act of 1855, chapter 337, entitled “ Ah act to enlarge the jurisdiction of the General and Special Sessions of the Peace in and for the city and county of New York,” came before the court. It was held that a provision enlarging the powers of the Courts of Oyer and Terminer and of Appeals was not invalid, although the title was restricted to courts in the city and county of New York.
In Conner v. The Mayor, etc., of New York (1 Seld., 285), the act in question was entitled “ An act in relation to the fees and compensation of certain officers in the city and county of New York,” and prescribed fixed salaries for the officers named. It further provided that all fees received by them should be paid into the city treasury. It was held that there was but one substantial subject of the bill, and that it was sufficiently expressed in its title..
In Phillips v. The Mayor of New York (1 Hilton, 483), the question arose upon the act of 1857, chapter 446, page 874, entitled “An act to amend' the charter of the city of New York,” in which various amendments were made to the charter, of the city theretofore existing. Section forty-eight excluded the aldermen from acting as judges in the Courts of Oyer and Terminer, or General or Special Sessions, and provided who should hold those courts. Courts of Oyer and Terminer are constitutional courts, and it was claimed that they did not come within the idea of amendments to the city charter. Section fifty-two added two new crimes to the criminal laws of the State, which, it was argued, were not within the proper idea of amendments to the city charter. The court held otherwise on both propositions, and adjudged the act to be unobjectionable within the provision we are considering.
In Mosier v. Hilton (15 Barb., 657), the court considered the act of March 28, 1850, entitled “ An act for the relief of the creditors of the Lockport and Niagara Falls Bailroad company,” which authorized the sale of the road and its franchises at public auction, and that the purchase-money should be applied to the payment of certain judgments named. The act contained further provisions authorizing the organization *410of a new company from the purchasers, with the usual machinery of an election, the choice of directors, the filing a certificate under the secretary of state, and a declaration that, when so organized, the company should have the same' powers and he subject to the same restrictions as the existing company. ■ It was claimed that this was a new and different subject, and that no intimation of it was conveyed by the title of the act. The court held that the provisions all related to the same general subject, the relief of the creditors, and that the act was valid. Many other cases to the same general effect are cited by Judge Welles in his opinion below.
These references, I think, sustain the argument - that the words in the title, “ and to provide for the settlement of claims for damages connected therewith,” includes a sufficient statement of, or reference to, the claim in question.
It is claimed that the section of the act of 1860, now in question, which provides for submission to arbitration of certain claims against the city for damages connected with the building of the junction gates, is also void as being in violation of article one, section two, of the Constitution of this State. • That article provides that “the trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever,” and also of section six of the same article, which provides that no person shall “be deprived of'life,liberty or property without due process of law.” This claim is not'sound in my judgment.
First, the section in the act of April. 1860, is permissive simply, not mandatory nor even directory. The language is “ for the purpose of adjusting and determining the damages that the contractors * * may be equitably entitled to recover of the city of New York, the same may be ascertained by three arbitrators,” etc., not that they shall be so ascertained, not that the city shall be compelled to submit to that mode of trial, but that .they may do so. The word “ may ” in a statute, means “ must ” or “ shall ” only ■ in those cases where the public interests and rights are concerned, and where the public or individuals have a claim de jure, that the power -shall be exercised. Here there is no *411public interest that requires the exercise of the power, and no absolute right, on the part of any individual, that it shall be so exercised. The public has no direct or immediate interest in the question, nor have the claimants a vested right to this mode of ascertaining the result of their claim. In such cases, the entire current of authority makes the language permissive merely. (Hutson v. The Mayor of New York, 5 Seld., 163; S. C., 5 Sand. S. C., 289; 1 Denio, 295; 3 Hill., 612; 5 Cow., 188; 3 Denio, 381; 22 Barb., 404 ; 5 Johns. Ch., 101; 10 How. Pr., 237.)
Another answer to this objection may be found in the fact alleged in the affidavit, that the persons acting on hehalf of the city requested the adoption of the section under discussion, or at least expressly assented to its passage by the legislature; and that they subsequently accepted the benefit of the act in its other provisions, and voluntarily acted in regard to the arbitration in question. It is certain that Baldwin & Jayeox made the claim in question, contending that it was valid, that they opposed at first the passage of the act, and afterward assented to it with the provision in question inserted. It is certain also that they had commenced legal proceedings against the corporation, and had by injunction restrained them from building their junction gates, and that the corporation require legislative aid to relieve it from its embarrassment.
This act was then passed by the legislature enabling the city to proceed in the construction of its works in the manner it desired, and embracing a section authorizing a submission to arbitrators of claims like that of the plaintiffs, and intended to embrace their claim.
In consequence of this provision the legal proceedings were abandoned, the injunction was dissolved, and the city was enabled to proceed with its suspended work.
The act was upon the statute book in form of a valid statute, and the defendants accepted the offer to proceed as upon a submission under its provisions. Assuming for the present that there was no compulsory power to submit to an arbitration, it was competent to the city to waive that point and *412accept the approved mode of testing the claim made by Baldwin & Jaycox. This they did by the appointment of an arbitrator by the mayor acting in behalf of the city, and this arbitrator united in the selection of an umpire, and aided in the trial of the cause. It was competent to the legislature to authorize the mayor to appoint this arbitrator on behalf of the city. Some department of the city must act in this respect, and the mayor was as competent an organ as the common council or any other of the many agencies by which the city was' accustomed to be represented. It is not permitted to a party both to accept and reject the subject of a choice. He may make his election, but is bound by it when made. Baldwin & Jaycox could not have taken a single step under the act of April, 1860, except by the concurrence of the city in appointing an arbitrator upon the nomination of the mayor. It was, therefore, entirely in the power of the city to reject the proffered mode of trial, had such been its wish. It apparently was not its wish at that time, and after having assented to the passage of the act' and voluntarily adopted an arbitration as a suitable mode of determining the controversy, they cannot be permitted to say that such an arbitration is illegal. (Havens v. Sackett, 15 N.Y., 365 ; Story on Eq. Jur., § 1075, et seq.)
The plaintiffs gave formal notice of hearing before the arbitrators to the mayor, to the Croton department and to the comptroller, and the first named official communicated the fact of such notice to the then corporation counsel. If not precluded by the appointment of an arbitrator, here was-another point, at which the defendants were called upon to express their disapprobation of the purposed mode of proceeding by arbitration if it did not meet their approbation. A' motion that the notice of hearing should be vacated and the proceedings stayed would have been in accordance with the practice in' such cases, and should have been adopted if the ^defendants intended to repudiate that mode of proceeding. They did not, however, take such action.
They also allowed the plaintiffs to proceed with a laborious and expensive trial, the result of which was a large award *413against'the city. This was confirmed upon notice to them. No objection was yet made to the arbitration, that it was illegal, compulsory or not acceptable to them.
They were officially and repeatedly called upon for the payment of this large sum, thus removing all doubt as to their knowledge, and no objection was still made to the arbitration, as to its results.
The plaintiffs, being unable to obtain the payment of their award, commenced a proceeding by mandamus to compel its payment, but the court declined to direct the issuing of the writ. Here is the first objection on the part of the defendants that I have been able to find that the trial had been had by arbitration, and that this mode of proceeding was unconstitutional.
An action was then commenced upon the award, the papers were served regularly upon the defendants, a defense interposed, the case goes to the circuit, and then to a referee, the formal proceedings of a trial take place, and a recovery is had in favor of the plaintiffs. It does not appear that,' in this action, the city objected to the law in question, or to the appointment of an arbitrator under it. If it had so objected, the decision would probably be now held as res judicata against them. The judgment sought to be vacated was recovered against the city in the suit last named.
During all this time, and for a period of one year and two months after the entry of this judgment and notice thereof to the city, no complaint was made, either of the form of the proceeding or its result. The present application is then • made, to vacate the award and the judgment, on the ground that they were obtained by fraud and collusion; and no facts are now shown that were not known to the moving party more than a year since. After this lapse of time, and with these repeated opportunities of interfering, both as to the constitutionality of the law, as to the form of the proceeding; and upon the merits, by appearance before the arbitrators and the referee, and by motion, and by appeal; now to vacate the award and judgment on the ground of the unconstitutionality of the law of 1860 in directing an arbitration, would be in vio*414lation of all just rules and principles. The defendants must be held to have adopted and assented to the act in question, and to all its provisions. ■ They are precluded from now objecting to them.
' Again, assuming that the constitutional provision which we are considering would prevent a compulsory submission as between individuals, it does not follow that such submission might not be compelled as against the city of Eew York. That body exists in a twofold capacity, as a simple corporation merely, authorized to make contracts and liable for their breach, and in the more enlarged capacity of a legislative body, acting and holding their property as trustee for the people of the city of Eew York, and subject to the control of the people of the State through their legislative authority. In the language of Judge Welles : “ The defendants are a municipal corporation, constituting a branch or portion of the government of the State, as applied to the city of Eew York, invested with certain legislative, municipal and administrative powers, as defined in its charter, which is a grant of political power, creating a civil institution, to be employed in the administration of the government. In the case of Underwood v. Dartmouth College (4 Wheat., 518), Washington, J., said that there were two kinds of corporations aggregate, to wit, such as were for public government, and others of a private character. That the first are for the government of towns, cities or the like, and, being for the public advantage, are to be governed according to the laws of the land. These he said were mere creatures of public institution, created for the public advantage. Such corporations derive their existence and all their powers from the legislature, and hold all their franchises in subordination to the power which creates them, and subject at all times to legislative interference and control; and in regard to the property held by the corporation, the corporate body is the trustee for the people, represented by the supreme legislative power. The legislature, therefore, in the exercise of such supreme power, may constitutionally direct, in relation to such property, as perfectly as it oan dispose- of property *415owned by the State as such. * * * The parties were in reality only the State, and the plaintiffs. It is true, the tax payers of the city were interested; but when the State interferes in an act of government, and as a question of power, the people of the whole State, represented by the legislature, become the only party besides the plaintiffs, and it was therefore competent for it to pass this law, without the assent of the city or its corporation.”
In Darlington v. The Mayor of New York (31 N. Y., 164) the third proposition of the head-note is in these words: “ The property owned by the city corporation is held by it as a public corporation, and is subject to the law-making power of the State, vested in the legislature. , It seems that property held by the corporation for public use is not subject to levy and sale on execution. But property hot held in trust for such use may be thus subject.”
That action was brought against the city under the act for compensating parties whose property may be destroyed by mobs or riots, passed April 13, 1855, and the plaintiff proved the destruction of his property by a riotous assemblage in July, 1863. The defendant moved for a nonsuit, on the ground that the effect of the act was to deprive the defendants of their property without due process of law, and that it was therefore unconstitutional and void. The court below nonsuited the plaintiff. This court reversed the judgment of nonsuit and held the law to be constitutional and valid. The third point of the defendant’s argument before this court embraced the proposition that the defendants were possessed of private property, which they hold and enjoy upon the same tenure as if it had belonged to an individual; and that, as respects their private property and its disposition, the defendants are as free from legislative control and interference as is any private individual in the possession and enjoyment of his property. It was then argued that the act in question created a debt against the city without their consent, charged their private property with its payment, and in effect transferred the private funds of the defendants, without their consent, to the individual sufferers from the *416riots. The plaintiffs’ counsel, on the other hand, claimed that the money or property in the hands of the treasurer was public money, for public purposes, to be defined by the legislature of the State, or by subordinate- bodies under a power delegated by the State; that it was a municipal corporation, and that every dollar of its property was public property which the legislature would have the right to appropriate to any public purpose in the city of New York that it should deem proper. That it was a trustee for specific purposes, with no powers and no rights but in the execution of its trusts. This court sustained the position of the plaintiffs, and held that the property was not private property within the meaning of the Constitution (p. 193), that, though the title was vested in the corporate body from motives of convenience, it was entirely competent for the legislature to direct their property to be sold and the proceeds applied to any public or municipal purpose within' the city. In support of their view the court enter into an elaborate examination of the authorities, citing, among others, Woodward v. Dartmouth College (4 Wheat., 518); Story on Cons., § 1, p. 387; 2 Kent’s Com., 275; Roosevelt v. Draper (23 N. Y., 318); Bailey v. The Mayor (3 Hill, 531; S. C., 2 Denio, 433); Guilford v. Clinger (3 Kern., 143).
In The People v. Pinckney (32 N. Y., 377, 393), the court, Davis, J., delivering the opinion, reiterates the same idea in these words: “ The power of the legislature of the State is supreme over that of all local legislatures, except when the Constitution intervenes to restrict it. The corporation of the city is not an officer, within the meaning of the tenth article. To diminish or restrict its general legislative or administrative power as a body corporate is not to abrogate or change a public office in the sense of the constitutional restriction. The legislature may recall to itself, and exercise at its pleasure, so much of the powers it has conferred upon the city corporation, as are not secured to it by the Constitution. This necessarily results from the fact that all the legislative power of the people is granted to the legislature, except' such as is expressly reserved.”
*417It is upon the same principle that the legislature have, for many years past, claimed and exercised the entire control over the streets of the city of New York, designating where city railroads may be built, and excluding the occupation of the streets from that employment as their judgment dictated. (The People v. Kerr, 37 Barb., 357; S. C., 27 N. Y., 188; Milhau v. Sharp, Selden’s opinion, Daily Tribune, March 21, 1864.)
In the case of The People v. Kerr (27 N. Y., 188), it was held that the fee of streets acquired by the city of New York, under the act of 1813, is held by it in trust for the public use of all the people of the State, and not as corporate or municipal property. It was decided, in the same case, that, such property being acquired by the exercise of the right of eminent domain, and the trust of the city being publici juris, it is under the unqualified control of the legislature, and any appropriation of it to a public use by legislative authority is not a taking of private property, so as to require compensation to the city to render it constitutional. Upon well established principles, and by these recent express -adjudications, I am of the opinion that the fourth section of the act in question, upon the supposition that it requires and compels a submission to arbitration, is still legal and valid.
I have not thought it necessary to examine the question of whether the plaintiffs had a valid legal or equitable demand against the city. It is sufficient for my purpose that they claimed to have such demand. Neither have I given much consideration to the cx parte affidavits of the defendants, seeking to show that the plaintiffs had in fact suffered no damage, but had escaped a great loss by being deprived of their contract. The respectable referees, after a protracted examination, held otherwise, and they must have had at least ordinary proof of the facts on which they based their decision. They acted not only under the sanction of their oaths, but under the higher safeguards of their reputation as intelligent and high-minded gentlemen.
*418The present proceeding is instituted by the comptroller, in opposition to the wish of the law department of the city, by virtue of the statute authorizing him to take such proceeding to vacate a judgment obtained by fraud or collusion. As to who the parties are that have peipetrated a fraud, we are not informed by the .affidavit. It is natural to suppose that the plaintiffs are intended as the persons to whom fraud is to be imputed, or with whom collusion occurred. No act, however, of the plaintiffs is pointed out as fraudulent, nor is any suggestion made as to the persons with whom they colluded. If they were the parties obtaining the passage of the act of April, 1860, if done by proper means; if they appointed their arbitrators; prosecuted their trial; demanded their pay; applied for a mandamus; sued their award; issued their execution; employed counsel, there is nothing in all this that would not have been done by honest and pure-minded men, who had, or supposed they had, a just claim against the city.
Neither is there any indication of the persons colluded with on the part of the city. The mayor, Judge Bronson, or Mr. Develin, were the persons most directly brought into connection with the plaintiff, but there is not an intimation that either of these officials violated his duty by colluding with the plaintiffs. . If the moving party does not know upon whom to charge the fraud or collusion, or is not willing td make the charge, he ought not to expect the court to seek out such information as to make such charge in his behalf. I think the judgment should be reversed.
Affirmed on the ground that the order appealed from was in the discretion of the court below.