16 N.Y.S. 488 | N.Y. Sup. Ct. | 1891
Lead Opinion
This is an appeal from an order denying relator’s motion for a writ of peremptory mandamus. In 1877 the relator was appointed Lite hanking department a special examiner to examine the Union Dime Savings Bank of New York. He entered on his work September 26th, and continued till February 27, 1878. The statute says that the expense “shall be paid by tlie corporation examined, in such amount as the superintendent shall ■certify to he just and reasonable.” Laws 1875, c. 371, § 43. During the ■examination the bank paid for this examination, for services, expenses, services of accountant, attorneys, and clerks, and disbursements, in all $8,356.05. This included $2,500 for the services of the relator, paid to him. Alter the •examination, Mr. Lamb, acting superintendent of the banking department, proposed to certify, under the law, $2,500 in full for compensation, being the amount already received. The relator deemed this insufficient, but presented ■no hill, and no formal action was taken by the acting superintendent. In November, 1887, the relator applied to Mr. Paine, then superintendent of the banking department, for a certificate of the amount deemed just and reason-aide. Mr. Paine denied the application, March 3,1888, holding that the lapse of 10 years since the services, and the failure to give or demand a certificate during that time, was a bar: Mr. Paine wrote a full and careful opinion, and concluded by saying: “If I am wrong in this opinion, the examiner has his remedy in the courts.” In May, 1890, the relator applied to Mr. Preston, ■the superintendent of the banking department, to reap -n and rehear the matter, and to make the said certificate; and about December 31, 1890, the superintendent denied the application, writing an opinion, and giving two reasons for his refusal: (1) That the claim was stale, and the applicant was barred; (2) that the dec.ston of Mr. Paine was res adjudicata, and a bar to the reopening of the matter. Thereupon the relator applied for a peremptory mandamus, which was denied. The opinion of the learned justice 11olds that the act of granting a certificate is judicial, and therefore mandamus ■does nut lie; abo that if the relator fell aggrieved by the decision of Mr. Paine lie should have levievved it by certio'/ari; also that Mr. Preston properly held that the decision of Mr. Paine was res adjudicata.
Tlie learned counsel for the relator on this appeal, while he does not dispute the general rule that mandamus does not lie to direct a judicial, or quasi judicial, officer how to act, insists that neither Mr. Paine nor Mr. Preston did act on the application, but that each refused to exercise judicial discretion,—the foimer, on the giound of the staleness of tlie claim; the latter, on
Still another objection exists. Mandamus should not be granted after the-period fixed by statute as a bar to an action has expired, (Code, § 414;. People v. Chapin, 104 N. Y. 96, 10 N. E. Rep. 141;) and may even be refused for loches before that period. Where a right exists, but a demand is-necessary to entitle a person to maintain an action, the time begins to run,
Mayham, J., concurs.
Concurrence Opinion
I concur in the result upon the ground quoted in the above-opinion from U. S. v. Bank, 15 Pet. 377. I think that mandamus is the proper remedy when a ministerial officer refuses to perform an act which an individual has a legal right to require, although the refusal may be based upon the officer’s misconstruction or misapplication of the law.