In re O'Connell

| N.Y. App. Div. | Apr 15, 1935

Pursuant to an order of this court dated April 1, 1935, the decision of this court handed down on March 25, 1935 [243 App. Dir. 812], is hereby amended to read as follows: Petitioners are judgment creditors of the city of Long Beach. Respondents are the members of the city council, the city treasurer and the city. Petitioners applied for peremptory orders of mandamus directing the respondents to pay their judgments or, in the alternative, that the moneys owing on their judgments be included for payment in the annual budget to be adopted for the year 1935. An order was entered granting the applications, but only to the extent of (a) directing the respondents to provide “ for the payment of the petitioners’ judgments out of funds available and provided for during the current fiscal year upon terms equally favorable with other creditors holding claims or judgments in the same class in respect to the amounts of their claims or judgments, which classes have been fixed and determined by the city of Long Beach as under $1,000, over $1,000 and under $3,000 and over $3,000, as determined by the original claims out of which the same arose;” and (b) directing the respondents “ to make provision for installment payments in future budgets to be adopted for the fiscal years beginning with the fiscal year of 1935 for the further liquidation of the petitioners’ judgments upon terms equally favorable to the terms of payment and liquidation which shall be extended to any or all of the other creditors of the city of Long Beach holding a judgment or judgments to the amount of $3,000 or more as determined by the original claims out of which same arose;” and (e) directing “ that should the parties hereto be unable to agree concerning what adjustments, payments or distribution have been made with other judgment creditors, that question will be referred to an official referee to hear and report.” Order modified on the law and the facts so as to provide that the motion be granted without conditions and the respondents or their successors ordered and directed to pay the unpaid judgments held by the appellants against the city of Long Beach, together with interest and one bill of costs, out of the surplus moneys now in the treasury of the city of Long Beach, which surplus moneys represent unexpended balances from the 1934 budget, and which are in excess of the amount of the total of the aforesaid judgments owing to the petitioners, appellants. As *727so modified the order is unanimously affirmed, with one bill of costs to appellants. Present — Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ.