45 2 REPORT OF THE COMMISSIONERS OF 



SUPREME COURT, 

 Franklin County 



Smith M. Weed, and another, J 



vs. { 



James A. Roberts, as Comptroller of the Statef 



of New York, and others. ) 



Application for injunction pendente lite. 



Frank E. Smith, for plaintiffs. 



T. E. Hancock, Attorney General for defendant Roberts. 



Frank L. Bell for defendant Davis and others as Commissioners, etc. 



E. Countryman, of counsel for defendants. 



McLaughlin, J. : There are many difficult questions of law involved in this proceeding, and 

 to grant the injunction asked for by the plaintiffs would be in effect to decide these questions in 

 their favor before the trial, and this a court of equity will not do unless it be first established that 

 it is necessary in order to prevent an irreparable injury, or that the plaintiffs have an undoubted 

 legal right to it. The papers presented do not establish either, and therefore the application 

 must be denied. My reasons for reaching this conclusion are as follows : 



First : It does not appear that the act of the Comptroller, it he considers the application 

 referred to, will be in any way prejudicial to the rights of the plaintiffs. The Comptroller not 

 only denies that he has determined or formed any intention to grant the application, but in 

 addition he alleges that he has formed no opinion as to the merits of it. It is, therefore, fair to 

 assume, if the plaintiff's contention be correct, either as to law or facts, that the Comptroller will 

 not grant the application. 



Second: I do not think that chapter 392 of the Laws of 1897 is repugnant to the Constitu- 

 tion. The power conferred upon the Comptroller to vacate or set aside the cancellation of a tax 

 sale made by his predecessor in office, is a valid exercise of legislative power. If the Legislature 

 could confer the power to cancel in the first instance, it necessarily follows that it could there- 

 after confer upon the same officer power to vacate or set aside a cancellation. In other words, 

 it could authorize him to reconsider or re-hear the matter once passed upon, and revise, reverse 

 or confirm his former decision. The fact that the cancellation was made, not by the present 

 Comptroller but by his predecessor in office, is immaterial. The office is a continuous one, and 

 a new Comptroller takes up the business pertaining to the office just where it was left by his 

 predecessor, and carries it on in the same manner and with the same legal effect as if he had 

 been the Comptroller during the preceding term. 



Third: If the Comptroller entertains the application, and his decision thereon be adverse to 

 these plaintiffs, they can review his action by writ of certiorari, and if illegal the same will 'be 

 reversed (People ex rel. Forest Commission v. Campbell, 158 N. Y. 51). 



Fourth : The plaintiffs have an adequate remedy at law. If the tax sale referred to is invalid, 

 their title to the land in question is not affected, they may keep and defend their possession of it, 

 or, if put out of possession, they may regain it by an action of ejectment (People ex rel. Hillard 

 v. Roberts, 151 N. Y. 543). 



Finally, a court of equity will not entertain a suit to prevent a cloud upon title to land unless 

 it be made to appear that there is a determination on the part of the defendants to create the 

 cloud, and it is not sufficient that the danger is merely speculative; it must exist; it must be 



