68 N.Y.S. 448 | N.Y. App. Div. | 1901
The moving papers tend to establish that the relator has performed his contract to an extent which entitled him to the payment as claimed. In support thereof he produces the certificate of the engineer in chief of the department of docks and ferries that there has been earned under the contract a sum sufficient to entitle him to the payment represented by the warrant which the order directs to be drawn. It is evident, therefore, that under former decisions of this court, which are supported by the decisions of the Court of Appeals,
These cases, however, are not authority for the issuance of a, mandamus in every case, even though the contractor makes out a prima facie case entitling him thereto. The party moving for the writ must establish a clear legal right thereto, and where he has a remedy to enforce payment by action he will ordinarily be remitted to that remedy. The application for the writ is addressed to the sound discretion of the court, and if it can see that there exists, or may exist, a fair ground of contest over the performance of the contract, or
It is quite clear that upon the proof submitted by the opposing papers herein the city may have a perfectly good defense to the present claim upon the merits. This consideration furnishes abundant reason why the writ should not be granted and why the relator should be remitted to his remedy by action to enforce the claim. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion for the writ denied, with ten dollars costs.
Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., and O’Brien, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.