54 N.Y.S. 639 | N.Y. App. Div. | 1898
On December 10, 1897, at a meeting of the inhabitants of school district No. 1 of the towns of Castleton and Middle-town, Richmond county, a resolution was passed authorizing the trustees of the school district to purchase a new site, and°build a new
The first claim of the appellants is that the relator’s remedy is by action, and not by mandamus. The rule that a mandamus will not be granted where the party has a remedy by action is one addressed to the sound discretion of the court, and is not of universal application. Thus, in Re Freel, 148 N. Y. 165, 42 N. E. 586, the comptroller of the city of Brooklyn was required by a writ of peremptory mandamus to approve the relator’s claim for work and material furnished under a contract with the city for the construction of a reservoir, and to make and sign a warrant for its payment. There was no question in that case but that the relator might have sued the city for the claim in an action at law. In People v. Schieren, 89 Hun, 220, 35 N. Y. Supp. 61, a writ of mandamus was issued against the comptroller and auditor to examine the relator’s claim for gas furnished under a contract with the city, and to certify the value thereof. Undoubtedly, also, in this case an action on the claim would lie. We are of opinion that where the right of a party to payment from the city is clear, and there are funds on hand applicable to such payment, the court may and will, in the exercise of a sound discretion, compel by mandamus a ministerial officer to audit and pay the claim, though, if the city itself repudiated or denied the existence of the obligation, the rule would be different. In the present case money for the construction of the school house was raised by the issue of bonds of the school district, and the proceeds were paid to the comptroller before the time of the relator’s application; The relator therefore made out a prima facie case, and was entitled to the writ, unless the affidavits on behalf of the comptroller and auditor showed sufficient cause to the contrary.
The affidavit of Mr. Coler states that he has examined the minutes of the meeting of the board of school trustees, and that from those minutes it appears that $5,500 was paid for the new site, a plot of about two acres, while the assessed value of the land was only $250-an acre; that a resolution was passed that the new school house should be built on the old site, and that the resolution authorizing
The case is to be distinguished from that of People v. Mooney, 4 App. Div. 557, 38 N. Y. Supp. 495. There it was sought by writ of
The order appealed from should be affirmed, with $10 costs and disbursements. All concur.