71 N.Y. 171 | NY | 1877
The appeal papers in this case show quite clearly that a fraud was perpetrated upon the board of supervisors, in reference to a considerable portion of the relator's claim. It is also apparent that another portion of the claim allowed was without any authority or sanction of law. Under such circumstances, it is manifest that a case was not made out, within the well-settled principle that a remedy by peremptory mandamus cannot be invoked, unless there is a clear and unquestioned legal right. (People ex rel. Mott v. Board of Supervisors of Greene Co.,
This view is also supported by the opinion of the judge upon the decision of the motion at Special Term, which constitutes a part of the record, and shows that the relator was given the right to renew his motion, if so advised, or to take an alternative mandamus, if he preferred; or a reference to *173 take proof of the correctness and nature of his claim as presented, or of any fact connected with the audit of the same. This was not accepted, as the order shows; and the relator, therefore, can only pursue his remedy by motion for such relief as he may be entitled to under the order of Special Term, and the order appealed from should be affirmed, with costs.
All concur, except FOLGER, J., absent.
Order affirmed.