44 N.Y.S. 528 | N.Y. App. Div. | 1897
Under the provisions of chapter 493 of the Laws of 1892, entitled “An act to provide for the construction of highways and bridges upon highways running through two or more towns in the same county,” the appellants were appointed commissioners to lay out and continue Warburton avenue through a portion of the town of Greenburgh and to construct the roads and necessary bridges therein. On July 28, 1893, they entered into a contract with the relators for doing the work for the sum of $89,443.10, payable only out of the moneys or proceeds of bonds, collected and received by the commissioners from the supervisor of the town of Greenburgh raised for the purpose of paying the expenses of laying out the road. The relators entered upon the. performance of their work, which was suspended for reasons connected with the sale of the bonds hereinafter referred to, but in September, 1895, they received from the engineer of the commissioners a certificate, in accordance with the contract, that the value of their work, completed up to that time, was $37,886. It appears, also, that the sum of $15,886 of that amount still remains unpaid.
. The appellants admitted the receipt of bonds from the supervisor of the town of Greenburgh to the amount of $149,000, and that the entire sum expended by them did not exceed $70,000, leaving unused by them the sum of $79,000. They set up as an affirmative defense that, after the receipt of said bonds, they offered them for
That the appellants are public officers was expressly decided in the case of The People ex rel. Henry v. Nostrand (46 N. Y. 381), where the question before the court involved the rights of commissioners appointed to lay out a highway in Queens county. The appellants, therefore, are subject to the law which applies to other public officers.
In the recent case of Tillinghast v. Merrill (151 N. Y. 135), a question which is stated by the court to have been, theretofore, an 'open question in this State, is decided against the contention of the appellants as to their personal liability for the loss of the money. It was a case where the defendant Merrill, while supervisor of the town of Stockbridge, deposited with a firm of private bankers, to his credit as supervisor, certain of the public moneys in his hands; the banking firm afterwards failed and the money was thereby totally lost. The action was brought by the county treasurer to recover the amount from Merrill and his bondsmen, upon the theory that Merrill, on receiving the money, became debtor of the county, and that the deposit of the same was at his own risk The court stated that there was no question but that the supervisor had acted in good faith and without negligence in the deposit of the moneys, so that the question as to the liability of a public officer for moneys intrusted to his custody, was clearly brought up. After a careful
We are, therefore, of the opinion that the appellants, being public officers, are liable to mandamus in the same manner as if they had in their hands'the bonds themselves, or the proceeds thereof in cash, to be used by them as provided in the act of 1892.
It is also contended by the appellants that the writ of mandamus will not lie, because the relators may have their action for the amount due them, and that it is settled in this State that a writ of mandamus will not be issued in any case where the relators have adequate legal remedy by action. This principle, however, is not to be too strictly construed, nor stretched to undue proportions. It is not entirely clear that an action at law would lie in favor of the relators against the appellants individually for the unpaid amount due the relators. The contract between the relators and the appellants provides that -the money shall be paid to them only out of the moneys received by the commissioners from the town of Green-burgh, or from the proceeds of bonds furnished them by the supervisor. On the other hand, it is doubtful, to say the least, whether an action would lie by them against the town of Green-burgh, whose duty it was to furnish the bonds to the commissioners of the improvement, or whether the relators can be relegated to an action to compel the town of Greenburgh to bring an action against the commissioners for their neglect and misfeasance, and to another action to have the moneys collected in such an action applied to the payment of the amount due the relators.
Where there is a reasonable doubt as to the certainty of a right of action, we are of the opinion that although there may be a remedy at law a writ of mandamus should be issued to enforce a clear right
It became the ministerial duty of the commissioners, upon the production of the proper certificate of their engineer, to pay the relators the amount of the contract obligation. It was their duty to sell the bonds, if they sold them at all, at not less than par, for cash, and not upon credit. If they had not been able to sell the bonds, they were authorized to pay them out to the contractors, provided the latter were willing to receive them, but their "duty was clear to take one course or the other. This required no exercise of their own judgment or opinion concerning the propriety of the act to be performed. The use of the bonds or their proceeds in the payment of the contractors was purely ministerial. (Matter of Freel, 148 N. Y. 165.)
The appellants further contend that a writ of mandamus to compel the payment of the amount due will not issue where there are no funds out of which they can make payment, and that the evidence conclusively shows that there are no such funds. To permit this contention would be to allow the commissioners to set up their own
This was the clear mandate of the act which is the charter of their existence. It was, at once, their sword and shield; they could use the bonds as the act indicated ; they could be compelled to no other disposition of them, and their defense either to an action for a money demand, or to an application for a writ of mandamus would have been that, while they could not dispose of the bonds at par; they were willing to pay them to the contractors in liquidation of their claim. That they are able to do neither is a result of their own illegal act.
It is, therefore, no answer to this application that the commissioners have not the funds in hand to pay the relators. They received the bonds and would have had them, or the cash proceeds, except for their wrongful disposition of them.
It cannot be seriously contended that if the commissioners for any reason had not been able to sell the bonds at par, the relators could have compelled them to sell the bonds at less than par, or to pay the contractors in cash, when they had no cash wherewith to pay, and no means of raising it, except by sale of the bonds in a manner not authorized by the act.
In The People ex rel. Dannat v. The Comptroller of the City of New York (77 N. Y. 45) a contract had been made for building a schoolhouse, and Dannat had obtained from the contractor a valid order on the board of education for the payment of a certain sum out of a specified installment when it should become due under the contract. When the installment became due, the board made a certificate in the nature of a voucher and transmitted the same to the comptroller, but the comptroller disregarded the order and paid the whole installment to the contractor. Dannat applied for a writ of mandamus to compel payment of his order, and the court held: " It is a general rule that the writ of mandamus will not be awarded when it appears that there are no funds out of which the war
The contract stated in express terms that it was made by “ The Warburton Avenue Extension Commission, party of the first part,” and it was executed under the corporate seal of the commission and signed by the relators in their official capacities as president, secretary and treasurer, respectively, and provided that the relators were to be paid “only out of such moneys as shall be collected and received by the party of the first part from the supervisor of the town of Greenburgh, in the county of Westchester, State of New York, as provided by chapter 493, Laws 1892, for the cost of said improvement, and only due and payable when such moneys shall have been collected and £>aid to said commission.”
This contract created no personal liability on the part of the commissioners if they performed the duty as it was imposed upon them by the act. It is only their failure to fulfill their plain duty as laid down in the act that has given rise to the present condition of affairs, and they cannot be permitted to set up their own wrongdoing as a defense.
In our use of the words wrongful and illegal, as applied to the action of the commissioners, we do not intend to imply that their action was occasioned by any moral obliquity on their part, or that they did not act as they thought was for the best interest of the matter in their charge; but we are dealing solely with the legal.dedue
It may well be that the commissioners will be subjected by this procedure to imprisonment for -contempt, in case of their disobedience of the final judgment, but that is a matter which will receive careful atténtion when it is presented for consideration, although it cannot be permitted to influence our conclusion.
We are, therefore, of opinion that the judgment must be affirmed, with costs.
All concurred, except Bartlett, J.3 who concurred in the result.
Judgment affirmed, with costs.