People v. Denison — 80 N.Y. 656

Majority

p. 656

The People of the State of New York, Appellant, v. Henry D. Denison et al., Respondents.

(Argued January 29, 1880;

decided April 6, 1880.)

Headnote

This action was brought to recover back moneys alleged to have been fraudulently obtained by defendants, under color of a contract with the State, “ by means of frauds,

' devices, false pretences and vouchers, and corrupt combinations and collusions with State officers.” The opinion read as stated in the minutes was not handed down.

C. J. Everett for appellants.

Wm. Q. Huger for respondents.

reads an opinion for affirmance of order of General Term, and for judgment absolute for defendants' holding.

First. That the cause of action stated in the complaint was one in fraud alone, and that the referees did not find that there was fraud in the transaction. In which all concurred except Earl, J., who thought the action might be held as one ex contractu.

Second. That the referees were right, though not in .all details stated by them, in the opinion that the canal com

p. 657

missioners and auditor acted without authority of law in some of the payments made to the defendants, but that the referees were wrong in holding that the State could recover all the moneys thus paid and not allow for the value of the work done. In this Miller and Earl, JJ., concurred; Church, Ch. J., Eapallo, Andrews and Daneorth, JJ., expressed no opinion.

Third. That there was not a ratification by the Legislature of the unauthorized payments. In this Miller and Earl, JJ., concurred ; Church, Ch. J., Eapallo, Andrews and Daneorth, JJ., did not concur, but on the contrary, held, that there was a ratification by the Legislature.

Order affirmed and judgment absolute for defendants.