
    
      In re Application of Attorney General.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 31, 1888.)
    Corporation's—Action to Vacate Charter—Leave to She.
    • Under Code Civil Proc. N. Y. § 1798, conferring on the attorney general, “upon-leave granted, ” power to bring an action against a corporation to vacate its charter, it is not for the court to inquire whether the bringing of the proposed action is a. wise administrative act, but only whether the attorney general alleges a prim a facie case, or a case of such gravity that it should be judicially determined.
    Appeal from special term, Ulster county.
    This was an application by Charles E. Tabor, attorney general, for leave to-bring an action to vacate the charter of the Ulster & Delaware Railroad Company. Erom an order granting leave, the railroad company appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      John B. Burrill, for appellant. B. Countryman, for respondent.
    
      
      Affirming 2 N. Y. Supp. 684.
    
   Landon, J.

The learned counsel for the appellant urges that the Ulster &, Delaware Railroad Company, by its purchase of the railroad property and franchises of the original Rondout & Oswego Railroad Company, did not thereby succeed to the liability of the latter company to dissolution or forfeiture of its charter because of its failure to “finish its road, and put it in operation in ten years from the time of the filing its articles of association,” as-required by the forty-seventh section of the general railroad act of 1850. We-admit that the reasons adduced are entitled to careful consideration. The 1798th section of the Code of Civil Procedure confers upon the attorney general, “upon leave granted,” power to bring an action against a corporation to-vacate its charter, upon the ground that it has omitted to do certain acts-which the laws require, or has done certain acts which the laws forbid. In bringing such an action the attorney general represents the people of the state, and it is undoubtedly the policy of the law to vest him with the administrative duty of determining whether the public interests are to be served by instituting such an action. He is to do it “upon leave granted,” and the-judicial duty of granting leave rests with the court. The court is not to inquire whether the bringing of the action is a wise administrative act, but. rather whether the attorney general alleges against the corporation a prima faeie case, or a case of such gravity that it seems proper that the court should, determine it upon a trial. The court would withhold leave in cases plainly frivolous, or where it is obvious upon inspection of the application that none-of the statutory grounds exists. We held in People v. Railroad Co., 27 Hun, 528, that we would not try the merits upon such an appeal. The-learned judge at special term was impressed with the conviction that the-question involved is of sufficient importance to justify the people in submitting their case to the court. In this view we concur. The order is affirmed,, with $10 costs and printing disbursements. All concur.  