
    In the Matter of the Application of Edwards D. Emerson et al., Constituting the Board of Education of the City of Buffalo, Appellants, against Frank X. Schwab et al., Constituting the Council of the City of Buffalo, Respondents.
    
      Buffalo (city of) — application by board of education for mandamus to compel council to issue bonds to raise money to erect school buildings denied.
    
    
      Matter of Emerson v. Schwab, 206 App. Div. 647, affirmed.
    (Argued April 19, 1923;
    decided May 8, 1923.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 7, 1923, which unanimously affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel the defendants to issue bonds of the city of Buffalo for the purpose of obtaining funds for the erection of certain school buildings. The basis of the application was a resolution of defendant council adopted in January, 1919, approving a resolution of the board of education recommending the purchase of sites and erection of twelve intermediate schools. The application was resisted by the respondents on the ground, first, that the time and method of issuing bonds was vested in the sound discretion of the council, and that no abuse of such discretion arose until there was a default of some kind, i. e., until the city was called upon to pay an obligation and the funds were not forthcoming. Second, on the-ground that the project referred to in the resolution of 1919 had been abandoned and rescinded and another building program substituted for it, which substituted program had been carried out and the moneys intended to be devoted to the original program expended for such substituted program. Third, that the resolution relied upon by the petitioners was never legally adopted.
    
      Simon Fleischmann, Martin Clark, Louis E. Desbecker and Charles B. Hill for appellants.
    
      Hamilton Ward, Jeremiah J. Hurley and William S. Rann for respondents.
   Order affirmed, with costs, on ground that the resolution of January 15, 1919, was abandoned and canceled by the council with the consent and approval of the board of education; no opinion.

Concur: Hiscock, Ch. J., Hogan, Caedozo, Pound, McLaughlin, Crane and Andrews, JJ.  