137 N.Y.S. 384 | N.Y. App. Div. | 1912
Lead Opinion
The Comptroller appeals from the determination of the Albany Special Term directing a mandamus requiring him to audit the relator’s claim and deliver him a warrant for
It thus appears that by the order appealed from the Comptroller has been directed to pay the account of a contractor while the alteration of the' contract upon which the account was stated and the acceptance and approval of the account stand disapproved by the Canal Board. The only justification for this order would seem to be that the Canal Board was without authority to rescind its resolution altering the contract and approving this account. But such authority must, from the
Without considering, therefore, the rights of the relator as against the State, this court should not issue its writ of mandamus to compel the Comptroller to pay a claim which stands disapproved by the Canal Board, upon the approval of which Board only is the Comptroller given power to make payment.
The order should, therefore, be reversed, without costs, and the motion for a writ of mandamus denied.
All concurred, Betts, J., in memorandum.
Concurrence Opinion
If the relator had by the mistake of some State officials secured a draft upon the Comptroller for the sum of $50,000 for work which had not been performed, or for work for which the relator had been previously paid, I presume no person would seriously claim that upon that fact being discovered and presented to the court mandamus would lie to compel the Comptroller to audit such claim at $50,000 and to issue his warrant upon the State Treasurer for the payment therefor simply because relator had possession of a warrant for that amount. Tet much the same condition exists here.
It was ascertained by the State Canal Board that an apparent error had been made and an exorbitant amount, considering the nature and extent of the work performed by the contractor, had been awarded to the contractor, and a draft presented to the Comptroller for audit, in accordance with such original mistaken idea as to the character and extent of the work performed under the contract. The Canal Board learning that an error had been committed promptly rescinded its resolution approving of such amount prior to the Comptroller auditing the claim or the court issuing its peremptory writ of mandamus..
By statute claims of the kind here presented are to be paid by the Treasurer of the State “ on the warrant of the Comptroller, after due audit by him, upon the presentation of the draft of the Superintendent of Public Works to the order of the contractor.” (Laws of 1903, Chap. 147, § 13, as amd. by Laws of 1906, chap. 365.)
The audit of the Comptroller is required.
Mandamus will not lie to compel audit in any particular way or for any particular amount by the Comptroller of the State. (People ex rel. Grannis v. Roberts, 163 N. Y. 70.)
It follows that the order appealed from should be .reversed, with costs and disbursements to the Comptroller.
Concurrence Opinion
I do not think the Canal Board had the power in the absence of any mutual mistake or fraud on the part of the relator to annul the adjustment and settlement which it made with the relator on the alteration and termination of his contract; nor do I think the Comptroller has the right arbitrarily to refuse to pay a claim audited and allowed by the proper State officials. The Canal Board, however, whether having the right to do so or not, assumed tó annul its adjustment of the relator’s contract, thereby recalling its audit and in effect .directing the Comptroller not to pay. In view of this fact, whether such recall was effectual or not, I do not think this court should issue its mandamus compelling the Comptroller to pay the original audit. Under the peculiar situation presented the more orderly way is for the relator to seek redress through the Board of Claims. It is upon this ground alone that I concur in a reversal of the order.
Order reversed, without costs, and motion for á mandamus denied, without costs.