77 N.Y. 45 | NY | 1879
This controversy has been an unfortunate one for the relator. He had a valid claim for about $1,300 against Dutch, a contractor for building a school-house, in the tenth ward of the city of New York, for lumber furnished for the same, and procured an order from Dutch upon the board of education for that amount to be paid out of the seventh payment to be made under said contract. This order was delivered to the board of education, and retained by it, and when the seventh payment became due, amounting to about $4,000, that board made a certificate thereof, stating all the facts necessary to constitute a voucher, such as the charter required to authorize the payment of money by the comptroller, and transmitted the same to the comptroller, with the order in favor of the relator attached thereto. The comptroller paid the whole of said payment to Dutch, disregarding the order in favor of the relator. This was a wrongful payment. The order operated as an equitable assignment of so much of the fund as was specified in it. (Edwards on Bills, § 143; Parker v. City ofSyracuse,
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 warrant can be paid if drawn. (High on Remedies, § 352.) But when money has been appropriated for a specific purpose it is not in all cases a sufficient answer to an application for a mandamus to compel its payment for that purpose to set up that the money has been wrongfully applied to other purposes. It may be regarded in contemplation of law, as still in the treasury. (People v.Stout, 23 Barb., 338, by DAVIS, J.; Hohl v. Town ofWestford,
It is objected however that this principle should not be applied in this case as the misapplication of the money was made by the predecessor of the present incumbent of the office of comptroller, and it is urged that there is a hardship in awarding the writ which might result in personal consequences to one public officer when the fault was committed by another.
The office of comptroller is a continuous office, and in a case where the city is liable for the wrongful act of its officer, the court is not bound to regard a change of incumbents, as the city is under an obligation to protect the officer against personal harm by furnishing the money necessary to relieve him. There are often appropriations applicable to the payment of judgments against the city, and under the exceptional circumstances of this case, we think that such money may be properly used to satisfy this demand. It may well be held that the city is estopped from insisting upon a remedy by action which it has deprived, or contributed in depriving the relator of. (Risley v. Smith,
We think that the order of the Special and General Terms should be reversed, and a writ awarded to the comptroller to pay the relator's claim. This he may do by paying it from money appropriated to pay judgments, or any other money which the city may furnish for that purpose, and a reasonable time to do this should be afforded, and if necessary the court might require a proper delay to prevent any personal inconvenience.
We think that the litigation should be terminated, and the order before indicated, granted.
All concur, except FOLGER and RAPALLO, JJ., not voting.
Ordered accordingly.