105 N.Y.S. 576 | N.Y. App. Div. | 1907
The order should be reversed,' with costs, and the application denied, with fifty dollars costs.
The. serious question involved in this ’ appeal ■ is whether peremptory mandamus is the appropriate or a proper remedy. The question does not involve the claims of. respondent alone. There are many others of a like nature, and the precedent here established is likely to be followed in all other cases of a like nature.
The rule of law is that mandamus. may not be used to- establish rights or to determine legal controversies, but solely to compel the doing of acts which it was the clear duty of a party to do without any commands whatever. (People ex. rel. Harris v. Commissioners, 149 N. Y. 26, 30; Brownsville v. Loague, 129 U. S. 493.)
So that the question is whether it was the legal duty of the county treasurer,' when- the trust company demanded partial payment of its. claim, to make such payment. We need to understand the facts and to consider some acts of the Legislature in order to determine this question.
Chapter 603 of the Laws of 1892 authorized the construction of a sewer in the tenth, .fifteenth and twentieth wards of the city of Rochester and in the town of Gates, Monroe county. Section 4 of this act (as amd. by Laws of 1895, chap. 438) provided for the appointment of three commissioners to construct the sewer. They were authorized to appoint one of their number a treasurer. And it was provided: “ The treasurer • shall, during the continuance of. said commission, collect and be the custodian of all moneys to be collected or received by the commissioners, under the .provisions of this act, and he shall ,pay out the moneys so received only upon the orders of the commissioners, - signed by at least two of their number.” Sections 7 and 12 of the act (§ 7, as amd. by Laws of 1895, chap. 438) provided for the apportionment of the expense of constructing the sewer among property owners, in the form of assessments, and for the collection of the,same. Sections 11 and 13 of the act (§ 11, as amd. by Laws of 1895, chap. 438) authorized the issue by the commissioners of six per cent certificates of indebtedness, in such form as they deemed proper, in payment of expenses in the construction of the sewer. Section 20 of the act (as amd. by Laws of 1895, chap. 438) provided that upon the completion
So much for the acts of the Legislature relating to the matter here involved. As to the facts, it'appears that the commissioners' proceeded to construct the sewer and issued certificates of indebtedness or bonds, amounting to $453,500, upon six per cent interest, of which there are now outstanding and unpaid $281,000. Mo four and one-half per cent bonds were issued by the city treasurer under the act of 1898; only the six' per cent certificates of indebtedness or bonds are outstanding.. Many of those issued have been received under the provisions of the acts for assessments upon property owners. . The trust company holds $38,000 of these certificates or bonds. There is in the hands of the county treasurer $89,271.19 of moneys belonging to this fund, and the claim made is that the trust company is entitled to its proportionate share of this money, and the treasurer was bound to pay it on demand without the direction of any court or of the supervisors of the county. Very likely the supervisors would have no control over the fund, because although it is made by statute a county fund, yet the treasurer is required to account for the" same to the County Court, which has the power to audit and allow the account, after hearing all parties interested in the fund. But it seems to us that the treasurer, in view of the requirement of the statute that he submit to the audit of the County Court, and that there is no express.statutory provision for the payment by him of these cei’tificates or bonds, should not be held liable or required to pay out any of this fund in liquidation of this indebtedness, except upon application to the County Court and an order by such court that such payment be made. The court which had the-whole matter of auditing of the accounts of the treasurer relating to the disposition of the fund in its charge would, before making such an order, require proofs insuring safety to be made as to the claim presented, and such notice to other parties interested in the fund as would be required upon the audit subsequently required to be'made by it. We do not think it should be held that the treasurer must, on demand, determine whether the claimant is entitled to be paid a part of the fund and take his chances of the County Court subsequently agreeing that the payment was properly made
All Concurred.
■Order reversed, with costs, and motion denied, with fifty dollars costs. ' ;