#### Andrew J. Kimball, Appellant, *against*Abram S. Hewitt *et al.,*Respondents.

(Decided February 4th, 1889).

An action to restrain certain officers, who were constituted the “ gas commission ” of New York City, from executing a contract for lighting the city, was brought by a taxpayer, on the ground that the commission, at the request of an agent of a certain company, which had deposited a bid for electric lighting, permitted the withdrawal of such bid, without considering or passing upon it. On a motion to continue the injunction, it appeared that such company .existed only on paper, and had no plant or wires or permission to place the same in the streets of the city, and that the bid was put in for the purpose of securing to such company certain concessions from the competing companies which had been agreed to but subsequently repudiated. There was strong reason to suspect that the coippany and not the plaintiff was the real party in interest. *Held,*that the court properly refused to continue the injunction, on the ground that the action was collusive.

*125Appeal from an order of the Special Term of this court denying a motion to continue an injunction.

The facts are stated in the opinion.

*L. L.*Kellogg, for appellant.

*H. R.*Beekman, for respondent.

Per Curiam.

[Present, Larremore, Ch. J., Allen and Bookstaver, JJ.]—On the 30th day of May, 1888, the defendants awarded contracts to certain electric light companies for furnishing electric light to a portion of the City of New York. The defendants were constituted a commission by law to receive bids and award contracts for lighting the city, commonly known as the Gas Commission. One of the bids or propositions deposited in a box for that purpose was a bid of the New York Electric Construction .Company. The commission, by resolution, at the request of one Hapgood claiming to represent the construction company, permitted the withdrawal and return of the bid to the company without considering or passing upon it, and thereafter made the award to other companies.

The plaintiff as a taxpayer brought an action under chapter 673, Laws 1887, to restrain the defendants from executing any contracts with any of the other electric light companies under the contracts so awarded. The motion to continue the injunction was denied on the ground that the action was collusive and lacked the essential element of good faith.

An examination of the papers presented to the court at Special Term, leads us to the conclusion entertained by the learned judge who heard the motion. At the time of making the bid, the New York Electric Construction Company was a mere paper company, having no plant, no wires by which the service contemplated in the bid could have been performed, nor any authority to place electric 'conductors in the street either above or under *ground;*and upon the argument, it *126was admitted on the part of. the appellant that the bid was put in for the purpose of securing to that company certain concessions from the competing companies, which were agreed to by them but subsequently repudiated.

From papers presented to the judge below, it is apparent that the action was well under way before the plaintiff had any cflhnection with it. An examination had been taken in another proceeding, which was apparently contemplated to be commenced in the name of William B. Lynch, but which was, as far as we know, never brought. • The complaint was all in typewriting, except the name of the plaintiff, which was written in evidently after the complaint itself had been framed. The principal affidavit relied on to sustain the injunction was made by the vice-president of the Electric Construction Company, and there is strong reason to suspect that that company and not the plaintiff is the real party in interest here. This being so, we think the judge below properly refused to continue the injunction, in the exercise of a sound discretion, and he was well supported by the authority of *Hull*v. *Ely*(2 Abb. N. Cas. 441).

Having arrived at this conclusion, it is unnecessary at this time to examine the question raised as to whether or not the defendants were justified in returning to the Electric Construction Company the bid and the check which had been deposited with it, concerning the legality of which we express no opinion.

The order appealed from should be affirmed, with costs.

Order affirmed, with costs.