232 A.D. 273 | N.Y. App. Div. | 1931
Even if mandamus were the proper remedy under the facts here, the procedure followed would be open to serious objections. No “ moneys ” were held “ in trust ” for petitioner by Condon, chief clerk, Division of Highways. The moneys due on the contract were held by the State. Nor was the check, which had been drawn but not delivered, in Condon’s possession as trustee for petitioner. It was in his possession merely in connection with his routine clerical duties. His possession was the possession of the Division of Highways of the Department of Public Works. If there
We are of the opinion, however, that mandamus is doubtfully applicable under the facts here. The State admits that certain moneys are due and owing by it on a highway contract. Conflicting claims thereto have been made. Until that conflict has been settled or determined, the duty to pay out is inchoate. While there is a possibility that if the procedural steps herein had been properly taken, the rival claimants might have been brought in by interpleader (Matter of Bohnet v. Mayor, etc., 150 N. Y. 279; 2 Fiero Particular Actions & Proceedings [4th ed.], 1959), it is thought that the proper remedy is an action under the precedent of Durant v. Whedon (201 App. Div. 196) or possibly a proceeding in the Court of Claims. (See Anderson v. Hayes Const. Co., 243 N. Y. 140.)
The order of peremptory mandamus should be reversed on the law, with costs, and the petition dismissed, with ten dollars costs and disbursements.
All concur. Present — Seaes, P. J., Ceottch, Tayloe, Thompson and Cbosby, JJ.
Order reversed on the law, with costs, and motion denied, with ten dollars costs.
