38 N.Y.S. 143 | N.Y. Sup. Ct. | 1895
This is an application for a writ of mandamus to cpmpel the comptroller of the city of Brooklyn to issue and sign a warrant upon the treasurer of the city in payment of a claim of the petitioner against the city for work done under a contract with the city. The contract was for the laying of water pipes and the constructing of a reservoir. It was made in the name of the city, by the mayor and the commissioner of city works, they being the officials authorized to make it. The work itself was, by the city charter, done under the authority and control of the said commissioner. Laws 1888, c. 583, tit. 15, § 11. The contract required that the chief engineer of the department should, once every month during the progress of the work, make an estimate in writing of the work done and material delivered, and the value thereof according to the prices by units of measure established by the contract; and that the city should thereupon pay the contractor 80 per cent, of such estimate; and that “whenever, in the opinion of the engineer, the party of the second part [contractor] shall have completely performed this contract on his part, the said engineer shall so certify in writing to the commissioner of city works, and, in his certificate, shall state, from actual measurements, the whole amount of work done by the said party of the second part, and also the value of such work, under and according to the terms of this contract”; and that, upon the expiration of 30 days after the acceptance by the commissioner “of the work herein agreed to be done,” the city should pay the contractor the amount then due and unpaid for work and material,
. A few days after this case was argued thg court of appeals of this state rendered a decision that, in such a case as this, ministerial officers of a city, whose duty it is to pay, or to raise money to pay, claims thus arising under contract, and certified and allowed by the officials intrusted by law with that duty, may not refuse to do so upon the allegation or claim by them that the work was not done, or even that the certificate of it was false, or given under a mistake of facts; that it is for the city itself to make such an issue; and that such ministerial officers cannot make it for the city. People v. City of Syracuse, 144 N. Y. 63, 38 N. E. 1006. It is for me to yield implicit obedience to this far-reaching decision, and I do so; but it does not control this case, unless the duties of the comptroller of the city of Brooklyn in respect of claims presented against the city are only clerical or ministerial, and this I do not concede. The charter of the city prescribes a succession of safeguards to the city treasury. In the first place, no bill or claim can be audited unless it be made out in items, and certified by the officer or head of department by or under whom it is incurred. Laws 1888, c. 583, tit. 5, § 13. In that form it goes to the auditor, an official whose duties are judicial in their nature, and of the highest importance. He has to examine and pass upon the claim in all its aspects, both of fact and of law. It cannot be paid until he certifies that the work has been done and the materials furnished, and that the charges are just, or according to contract, if there be one, and lawfully incurred. Section 1. To satisfy himself of this, he has the right, and it is his duty, when necessary or prudent, to take evidence and inspect books and papers. If he fail in this, it is either because he does not understand the nature of the duties of his office, deeming them merely perfunctory, and, it may be, to be turned over to a deputy or clerk, or else because he refuses to fulfill his trust. The charter allows him to appoint a deputy to act “during his absence,” which means an occasional temporary absence from his office, from sickness or the like. Title. 22, § 26, It does not mean that the auditor may, in general, turn his office and judicial duties over to a deputy. Throop, Pub. Off. § 586; > People v. Hopkins, 55 N. Y. 74. A bill or claim, after being thus examined and allowed by the auditor, becomes a voucher, which must be “also approved by the comptroller” (title 5, § 2) before he may draw and sign a warrant on the treasurer therefor; and, finally, such comptroller’s warrant has also to be signed by the mayor, but the mayor is expressly prohibited from signing it “unless a proper voucher therefor shall have been first examined and certified to by him” (title 3, § 11).
Thus are these three officials placed by law at the gateway to the public treasury of the city of Brooklyn. I have been at pains to show that auditing duties are given to and required of the comptroller and mayor, as well as the. auditor (not in so scrut
It being, therefore, the duty of the comptroller to examine and approve all vouchers coming to him from the auditor, and that being a duty of substance, as well as of form, as we have seen, it only remains to inquire whether, upon the facts before me, he is justified in his refusal in this instance. That inquiry is met at the threshold by difficulties growing out of the contract itself, which, instead of binding the contractor to definite specifications, leaves the most essential particulars in respect'of work and material to the discretion of the engineer, to be fixed or changed by Mm as the work goes on. Indeed, the contract, in this respect, may be called extraordinary. It might well be supposed that the best material for the sides or the bottom of a reservoir—for instance, the materials, and the proportion in which they should be mixed, to make puddle which will hold water in a reservoir— are well known; and yet by this contract the contractor is not bound by specifications in these essential particulars, they being left to the direction of the engineer. And therefore, if this reservoir leaks, the question obviously is whether the blame lies with the engineer, and not with the contractor. If the contractor followed the direction of the engineer, as he was bound to do, his obligation was fulfilled, whatever the result.
The petition makes out a full case for a peremptory writ. It states the contract; the performance of the work as directed by the engineer; the certification thereof, and of the amounts due by the engineer and by the commissioner; and the audit of the amounts .due by the auditor. The petitioner thus presents a complete case, not depending upon his word alone, but upon the official action of the officials to whom the contract subjected him. It is met first by the affidavit of the comptroller, wMch is expressly made upon information alleged to be “received from the department of city works,” except the general and unspecific statement that “the reservoir is defective and incomplete, and not according to said agreement.” I am therefore required by law to disregard it, for it is a rule that denials upon information and belief, in a proceeding for a mandamus, and affirmations which are not specific and positive, or are only of conclusions, are of no avail. Merrill, Mand. § 274; Spell. Extr. Relief, § 1664; People v. Common Council of City of Brooklyn, 77 N. Y. 503. Moreover, the court has before it the affidavits of the engineer and commissioner of the department of city works, which makes of no
“It has not yet been practicable to ascertain the full extent of the defects in the reservoir, which can only be revealed after such a test of the sides of the reservoir as has not yet been practicable.”
It cannot be expected that from this statement the court is to presume there are defects which the commissioner has not yet been able to find. And why has "such a test” as the commissioner seems to have in mind not yet been practicable? The six months allowed by the contract have elapsed, and the 8 per cent, is still retained. When is the test to be practicable which is to discover defects which should have been discovered in six months, but are not yet discovered, and may not exist at all? The affidavit then states that “the defects disclosed, and likely to be disclosed, in said reservoir, are likely to require” more expenditure than the amount reserved by the contract. This court is not informed what this succession of likelihoods is based upon. The defects disclosed are not described, and those likely to be disclosed are not even hinted at. The affiant then states that, upon investigation since he came into office, he has ascertained that the clay used for puddle 'was the property of the city, “having been taken by petitioner from the property of the city at Smith’s pond, a little over a
“None of the clay dug and taken by said Edward Freel from the property of the city at Smith’s pond, and which was by him used as clay for puddle in the construction by him of the said reservoir, was either dug or taken under any of the provisions of the said contract or plans, or orders of the engineer, nor was it necessary to dig the same in order to perform the said contract for digging and enlarging Smith’s pond.”
Here is a general statement that none of the clay in question was taken from Smith’s pond under the reservoir contract. I do not see the use of this statement. If the earth was taken, the terms of the reservoir contract determine whether it was taken under it. And the concluding statement, “nor was it necessary to dig the same in order to perform the said contract for digging and enlarging Smith’s pond,” is worthless, it being a mere conclusion of the affiant. He does not say that it was not dug out of Smith’s pond in carrying out the contract for enlarging Smith’s pond, but that it was not necessary to dig it out in performing such contract. The real truth is obviously veiled by this affidavit. No doubt, the clay was dug out of Smith’s pond, and the court is not permitted to take this affiant’s conclusion that it was unnecessarily dug out. And, if it was unnecessarily dug out, it is not seen how that would make any difference, and no fact is stated from which the court may draw the conclusion that it does make a difference. The earth excavated at Smith’s pond would presumably belong to the contractor, and it would be his duty to get it out of the way. Cooper v. Kane, 19 Wend. 386. The contract now before the court expressly contains such a requirement. But the answer to this claim against the petitioner, left wholly unsubstantiated by any facts from which the court may draw a conclusion, is that it does not enter into the question of the performance of his reservoir contract; it pertains to his Smith’s pond contract; and, if the city actually has any such claim for the larceny or conversion of its property, it is for it to bring action upon it, so that the case may be tried. It cannot be mixed up with the audit of the contractor’s claims under the reservoir contract, for the auditing officers have no power to pass upon it. They can only audit claims against the city, not claims by it.
Finally, the affidavit of the commissioner asserts a liquidated claim against the contractor for $250 a day for not completing the work within the time prescribed by the contract. The contract requires the contractor to begin the work on a written notice from
In conclusion, the contract is hot for a gross sum, but provides that the actual work done and material furnished each month shall be paid for according to the prices fixed for the units of measure
The motion is granted, subject to the credits shown.