The defendants insist that the curative statute passed in 1874 (L. 1874, chap. 638) validated the bonds in question, and is a complete defense to the action. Other defenses were set up, but this is the only one to which it is necessary to advert.
The validity of the statute is questioned by the appellants. It is plain that if it is valid, the plaintiffs have no cause of action, and the judgment should be affirmed.
This court has already passed upon the statute referred to, and adjudged that it was valid, in this very case, sub nomine Rogers v. Smith (5 Hun, 475), on appeal from an order continuing the temporary injunction.
It is insisted on the part of the plaintiffs, that the decision of a court upon an order continuing or vacating an injunction is not decisive either as to the facts or the law upon the final hearing of the cause. I11 general, that is probably the rule, but I think if does not apply to the circumstances of this case. O11 the appeal from the order there were no disputed facts: the only question involved was that of the constitutionality or validity of the act; *46and that question, and that alone, was passed upon by the court, in a well-considered opinion, after an exhaustive argument by counsel. The opinion was written by Mr. Justice Gilbert, and concurred in by the presiding justice, E. Darwin Smith, and Mr. Justice Merwin. The judgment now appealed from cannot be reversed without overruling that decision, and under the circumstances the adjudication of our juedecessors must be regarded as settling the.question for this case in this court. (Revell v. Hussey, 2 Ball & B., 286 ; Earn on Legal Judgment, 292.)
The plaintiffs’ counsel suggest that the decision in 5 Hun proceeded upon an erroneous idea of the law, as since settled. This suggestion has reference to the apparent conflict between the case of Duanesburgh v. Jenkins (57 N. Y., 177), which had thenfbeen recently decided, and the cases of The People v. Batchellor (53 Id., 128), Williams v. Duanesburgh (66 Id., 129), and Horton v. Town of Thompson (71 Id., 513); the latter cases holding that the legislature has' not power to eompel a town, without its consent, to issue its bonds or contract a debt in aid of a railroad company. But all the cases agree that the legislature may, by a subsequent act, validate an irregular exercise by a town of a power to bond itself in aid of a railroad company previously conferred upon it. The only defect alleged in the proceedings to bind the town of Greenwood, was that the petition of the tax-payers omitted to state the fact that the corporation which it was proposed to aid was a railroad company in this State. (People ex rel. Rogers v. Spencer, 55 N. Y., 1.) In all other respects the petition was sufficient; the requisite consents had been obtained, and the proceedings were regular. I am not aware of any case holding that the Legislature has not power to cure a defect of that nature. At any rate, our predecessors in this dejiartment have held that the power exists, and I think that their decision should be accepted as conclusive upon us.
The judgment should be affirmed with costs.
Talcott, P. J., and Hardin, J., concurred.So ordered.