lature to mention the sane party to a marriage as a person by whom an action might be instituted. The Supreme Court has general jurisdiction in law and equity (Const. art. 6, § 1), and hence the Legislature cannot limit or abridge its jurisdiction.

In Wightman v. Wightman, 4 Johns. Ch. 343, it was held that a court of equity had jurisdiction at the instance of a person, sane at the time of the commencement of the action, but insane at the date of the marriage and for some six months subsequent thereto, to annul a marriage upon the ground of the insanity of the plaintiff at the time of the marriage; the chancellor stating that jurisdiction existed independently of statute, and that, therefore, it exists still, in spite of any legislation on the subject.

The Court of Appeals, in Walter v. Walter, 111 N. E. 1081, 217 N. Y. 439, recognizes the existence of this jurisdiction and cites the Wightman Case as an authority. The ruling in the Walter Case is not an authority which can be invoked to sustain the respondent's position here. The precise point decided in the Walter Case is that equity could not add, to the parties by whom such a suit could be instituted, those who had never been recognized by a court of equity as appropriate parties plaintiff, or given statutory authority to institute such an action.

We have not overlooked the case of Reed v. Reed, 186 N. Y. S. 897, 195 App. Div. 531, wherein the respondent's contention was upheld by a divided court. That case, however, is not controlling, and cannot receive our approval. We hold that under the equity powers of this court, supplemented by section 1132 of the Civil Practice Act (formerly section 1743 of the Code of Civil Procedure), and also by virtue of section 7 of the Domestic Relations Law, subdivision 2, (as amended by Laws 1924, c. 165), the plaintiff had the right to maintain his suit for annulment.

Judgment dismissing plaintiff's complaint reversed upon the law and the facts, and judgment granted to the plaintiff for the relief prayed for in the complaint.

Proper findings in accordance with this decision may be submitted. Settle order on notice.

(216 App. Div. 311)

(215 N.Y.S.)

UNIVERSAL BY-PRODUCTS CORPORATION v. SCHWARTZ, Commissioner of Public Works.

(Supreme Court, Appellate Division, Fourth Department. March 24, 1926.) 1. Mandamus 92-Petition alleging that city council duly adopted resolution directing execution of contract for construction of garbage disposal plant held to entitle petitioner to alternative mandamus order directing execution of formal contract.

Petition alleging that petitioner submitted lowest bid for construction of garbage disposal plant, and that resolution was duly and legally adopted by city council, directing commissioner of public works to enter into contract with petitioner, held to entitle petitioner to alternative mandamus order, at least as matter of discretion, directing comm.issioner to execute formal contract.

2. Municipal corporations 120.

Resolution duly adopted by legislative or administrative body with granted powers imports some color of validity on its face.

3. Municipal corporations 122(1).

Allegation that resolution of city council was "duly and legally adopted" is sufficient pleading of validity thereof.

4. Mandamus ~154(2)—Petition for mandamus order need not set forth evidence, but need merely make plain and concise statement of material facts showing their legal effect (Civil Practice Act, §§ 241, 1316).

Under Civil Practice Act, §§ 241, 1316, petition for mandamus order need not set forth evidence, but is sufficient if it makes a plain and concise statement of material facts, showing their legal effect.

5. Mandamus 154 (2)-Invalidity of city council's resolution directing execution of contract for public improvement is matter of defense, which petition for mandamus order need not anticipate.

Invalidity of resolution of city council directing execution of formal contract for public improvement is matter of defense, which petition for mandamus order to compel execution of contract is not required to anticipate.

Under Civil Practice Act, §§ 1332, 1333, petitioner for mandamus order to compel execution of formal contract for construction of garbage disposal plant is entitled to have issues of fact tried.

7. Mandamus ~3(2).

Existence of another remedy by action for damages is not a legal reason why petition for mandamus order should be denied.

Appeal from Special Term, Erie County.

In the matter of the application of the Universal By-Products Corporation for an order of mandamus against William F. Schwartz, as Commissioner of Public Works of the City of Buffalo. From an

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

order denying petitioner's motion for a mandamus order, petitioner appeals. Order reversed, and matter remitted, with directions to issue an order of alternative mandamus.

Argued before HUBBS, P. J., and DAVIS, SEARS, CROUCH, and TAYLOR, JJ.

Elijah W. Holt, of Buffalo, for appellant.

Frederic C. Rupp, Corp. Counsel, of Buffalo (John E. Livermore, of Buffalo, of counsel), for respondent.

DAVIS, J. [1] The petitioner in applying for a mandamus order set forth in its petition that it had, with others, made a bid to the council of the city of Buffalo for the construction of a garbage disposal plant after the city by its duly constituted officers had by proper acts and negotiations invited such offers. It says the bid it submitted (and annexed to the petition) was the lowest bid, and that it gave a bond conditioned to insure the completion of the work. It alleges further that thereafter a resolution, set forth at length, was duly and legally adopted by the council directing the commissioner of public works to enter into a contract with petitioner on the terms of its bid; but the commissioner refused to enter into or sign the contract. Petitioner applied for a peremptory order of mandamus, directing the commissioner of public works to prepare and execute a formal contract as provided in the resolution, or, if it should appear after answer that a material question of fact was involved, that an alternative order be granted.

The respondent, in its return, denied certain facts in the petition, and alleged, among other things, that the resolution in question "was not adopted pursuant to the legal procedure prescribed by the charter of the city of Buffalo." The application for the order was denied at Special Term.

[2, 3] We think that on the face of the petition, the petitioner was entitled to an alternative order under the circumstances, at least as a matter of discretion. It would seem that a bid was made and accepted, and that all that was lacking was to reduce the contract to the ordinary legal form and have the same signed by the commissioner of public works, so that the petitioner might be justified in going forward with the large contract it had undertaken. A resolution duly adopted by a legislative or administrative body, with granted powers and duties, imports some color of validity on its face. The allegation that the resolution was "duly and legally adopted" is sufficient in a pleading.

[4] The petition for a mandamus order is governed as to its form by the provisions of statute and rule respecting the statement in a complaint of the facts constituting a cause of action. Civil Practice Act,

(215 N.Y.S.)

§ 1316. The pleader is not required to set forth the evidence by which the material facts he alleges are to be proved, but it is sufficient if he makes a plain and concise statement of those facts, showing their legal effect. Civil Practice Act, § 241; Brown v. Champlin, 66 N. Y. 214; Rochester Ry. Co. v. Robinson, 30 N. E. 1008, 133 N. Y. 242; Dobbins v. Delaware, L. & W. R. Co., 163 N. Y. S. 849, 177 App. Div. 132, affirmed 124 N. E. 897, 227 N. Y. 565.

[5, 6] In drafting such petitions, it is the common method followed in practice to use such words as those employed here in reciting the acts of officers or boards. See Fiero, Special Proceedings (3d Ed.) 1525 et seq. The invalidity of the act of the council is an objection or matter of defense, which the petitioner was not bound to anticipate. See 38 C. J. 872, and cases cited. The petitioner is entitled to have the issues of fact tried. Civil Practice Act, §§ 1332, 1333.

[7] The fact that the plaintiff may have had another remedy by an action for damages on his contract does not furnish a legal reason why this petition for mandamus order should be denied. People ex rel. Treat v. Coler, 68 N. Y. S. 767, 56 App. Div. 459, affirmed 59 N. E. 776, 166 N. Y. 144; People ex rel. Frost v. New York Cent. & H. R. R. Co., 61 N. E. 172, 168 N. Y. 187; Matter of Donner-Hanna Coke Corp. v. City of Buffalo, 209 N. Y. S. 62, 212 App. Div. 338, 342. It does not appear from the record that the petition was denied as a matter of discretion at Special Term.

The order should be reversed on the law and facts, with $10 costs and disbursements, and the matter remitted to the Special Term, to issue an order of alternative mandamus. All concur.

(216 App. Div. 348)

FRIEDMAN v. FRIEDMAN.

(Supreme Court, Appellate Division, Second Department. March 26, 1926.)

Divorce

262-Refusal to stay trial of wife's separation action until husband purged himself of contempt by paying alimony and counsel fee held within discretion (Judiciary Law, § 775).

Refusal to stay wife's separation action until husband, urging alimony decree unwarranted by his financial circumstances, purged himself of contempt by paying alimony pendente lite and counsel fee, held within trial court's sound discretion, in view of Judiciary Law, § 775.

Appeal from Special Term, Kings County.

From an

Action by Leah Friedman against Isidore Friedman. order denying plaintiff's motion to stay the trial, she appeals. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Argued before KELLY, P. J., and RICH, JAYCOX, KAPPER, and LAZANSKY, JJ.

Harry G. Fromberg, of New York City (Lewis Nadel, of New York City, on the brief), for appellant.

Sidney A. Clarkson, of New York City, for respondent.

KAPPER, J. This is an action for separation. On July 7, 1925, an.order directed the defendant to pay to the plaintiff $60 a week alimony, pendente lite, and $200 counsel fee. Defendant has been making payments in part compliance with the order which aggregate $540, but there remains due, according to the plaintiff, the sum of $700, inclusive of one-half of the counsel fee. Plaintiff noticed the cause for trial for both the October and December, 1925, terms. On December 28, 1925, the cause appeared on the reserve half of the day calendar for trial. It appeared again on the reserve half of the day calendar for January 4, 1926. On January 5, 1926, it appeared on the ready calendar for trial. On the various calendar calls, plaintiff requested that the cause be marked off by reason of the defendant's failure to pay the alimony and the one-half unpaid counsel fee. By an order made November 19, 1925, defendant was adjudged in contempt for failure to pay arrears of alimony and counsel fee, and pursuant thereto, and on December 16, 1925, under an order and warrant of commitment, the defendant was imprisoned, and is so confined at the present time. The learned justice at Special Term for trials has denied a motion by the plaintiff to stay the trial of the action until the defendant pays the arrears of alimony and counsel fee, with the exception that he has directed the defendant to pay before the trial the balance of the counsel fee remaining unpaid. From that order plaintiff appeals, and claims to be entitled to a stay of the trial as a matter of right. The record contains what defendant has characterized as an "offer of judgment," the purport of which is that the defendant indicates that he does not intend to oppose plaintiff's right to a decree of separation. This would leave for hearing the usual proof presented upon an inquest in like actions, and the amount of alimony to be inserted in the decree, if granted. The defendant urges that he is "absolutely without property or funds or any source of income," and asks that the Special Term for trials consider that fact, together with his present incarceration, and make a decree regarding alimony that would be in the interests of justice.

The defendant had a remedy, by application to the Special Term, for a modification of the order awarding alimony and counsel fee. But, the cause appearing on the day calendar for trial, he urged that the trial court consider the merits and make such disposition of the cause as the circumstances warranted.

The practice has ordinarily been to stay the trial of a matrimonial