FOLGER, J., reads an opinion for affirmance of order of General Term, and for judgment absolute for defendants' holding.
First. That the cause of action stated in the complaint was one in fraud alone, and that the referees did not find that there was fraud in the transaction. In which all concurred except EARL, J., who thought the action might be held as one ex contractu.
Second. That the referees were right, though not in all details stated by them, in the opinion that the canal commissioners *Page 657 and auditor acted without authority of law in some of the payments made to the defendants, but that the referees were wrong in holding that the State could recover all the moneys thus paid and not allow for the value of the work done. In this MILLER and EARL, JJ., concurred; CHURCH, Ch. J., RAPALLO, ANDREWS and DANFORTH, JJ., expressed no opinion.
Third. That there was not a ratification by the Legislature of the unauthorized payments. In this MILLER and EARL, JJ., concurred; CHURCH, Ch. J., RAPALLO, ANDREWS and DANFORTH, JJ., did not concur, but on the contrary, held that there was a ratification by the Legislature.
Order affirmed and judgment absolute for defendants.