The opinion
Gray, J. (dissenting).
I think enough is alleged by the plaintiff to impeach the acts of the common council of the city • of Buffalo for fraud in the granting of the consent to the traction company.
It would be disastrous to hold that, where a municipal body is chai'ged, as it is here, with fraiidulent use of power and collusion, and a consequent waste of municipal property, no case was presented for judicial inquiry.
I think there should be a trial, as to this question, and an. opportunity thus afforded for the plaintiff to sustain his allegations by such evidence as he may have.
O’Brien and Haight, JJ., concur generally with Parker, Ch. J., for affirmance ; Martin, J., concurs in result; Bartlett and Vann, JJ., concur with Gray, J., for reversal.
Order affirmed.