121 N.Y.S. 504 | N.Y. App. Div. | 1910
This action rests upon an agreed statement of facts, and is brought for the purpose of obtaining the judgment of this court as to the validity of certain bonds of the town of Greenburgh, in the. county
Eo question is here raised as to the regularity of the proceedings under the provisions of the Drainage Law, and the fact that the plaintiff has, under the command of a writ of mandamus, offered these bonds for sale presupposes that the bonds were legally issued, for it is the primary object of the writ of mandamus to compel action. It neither creates nor confers powers to act, but only-commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. (People ex rel. Linton v. Brooklyn Heights R. R. Co., 69 App. Div. 549, 551, 552, and authority there cited.) The whole question as to. the regularity of the issue of these-bonds was before the court in People ex rel. Mount Vernon Trust Company v. Millard (133 App. Div. 139) and in the proceedings forerunning that decision, and the question here presented appears to have been suggested by our'discussion of the right of the appellant in that case to further pursue the litigation. In that discussion we pointed out that’ the proceeding for the drainage of land, in providing a bonding scheme, had made the charge to rest upon the property benefited, and that the provision for bonding the towns where the lands were situated was designed to make the funds immediately available, while the landowners were permitted to have the assessments upon their property spread over a series of years. There may be in the language used some expressions which might be tortured into a suggestion that the bonds are not primarily the obligations of the town, but, we think a fair reading of the opinion justifies nothing more than we intended to point out, which was that the supervisor of the town had no standing to further coptest the questions presented upon the trial of the alternative writ, because the town was not, in its corporate capacity, aggrieved, because the statute in effect
The plaintiff should have judgment.
Hirschberg, P. J., Jenks, Burr and Thomas, JJ.-, concurred.,
Judgment for plaintiff in accordance with the terms of the submission, without costs.
See, also, Drainage Law of 1869 (Chap. 888 ; R. S. pt. 3, chap. 8, tit. 16), § 11, as amd. by Laws of 1901, chap. 523, § 3.— [Rep.