
    Charles D. Millard, as Supervisor of the Town of Greenburgh, Plaintiff, v. Walter B. Adams and Others, Defendants.
    Second Department,
    March 4, 1910.
    Mandamus—issuance of writ establishes validity of act commanded — town — bonds — Drainage Law.
    The issuance of a peremptory writ of mandamus commanding the supervisors of a town to sell bonds pursuant to section 36 of the Drainage Law is a determination establishing that the bonds are legally issued. This because the primary object of the writ is to compel action. It neither creates nor confers power to act, but only, commands the exercise of power already existing.
    A town is liable on bonds, issued pursuant to section 36 of the Drainage Law the same as if issued for any other town purpose, and they are a lien upon all the taxable property in the town.
    Submission of a controversy upon an agreed statement, of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      J. H. Caldwell, for the plaintiff.
    
      Standish Chard [Charles K. Allen'wtíh. him on the brief], for the defendants.
   Woodward, J.:

This action rests upon an agreed statement of facts, and is brought for the purpose of obtaining the judgment of this court as to the validity of certain bonds of the town of Greenburgh, in the. county of Westchester, advertised arid sold by the plaintiff, as supervisor of the town, to the defendants under the provisions of section 36 of the Drainage Law (Consol. Laws, chap. 15 ; Laws of 1909, chap. 20) in compliance with a peremptory writ of mandamus issued out of the Supreme Court, commanding the plaintiff to sell the bonds. The defendants have refused to accept delivery of the bonds and to pay therefor the balance of their bid, on the ground of the allegéd invalidity of the bonds, and the purpose of this action is to determine the question of validity.

Eo question is here raised as to the regularity of the proceedings under the provisions of the Drainage Law, and the fact that the plaintiff has, under the command of a writ of mandamus, offered these bonds for sale presupposes that the bonds were legally issued, for it is the primary object of the writ of mandamus to compel action. It neither creates nor confers powers to act, but only-commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. (People ex rel. Linton v. Brooklyn Heights R. R. Co., 69 App. Div. 549, 551, 552, and authority there cited.) The whole question as to. the regularity of the issue of these-bonds was before the court in People ex rel. Mount Vernon Trust Company v. Millard (133 App. Div. 139) and in the proceedings forerunning that decision, and the question here presented appears to have been suggested by our'discussion of the right of the appellant in that case to further pursue the litigation. In that discussion we pointed out that’ the proceeding for the drainage of land, in providing a bonding scheme, had made the charge to rest upon the property benefited, and that the provision for bonding the towns where the lands were situated was designed to make the funds immediately available, while the landowners were permitted to have the assessments upon their property spread over a series of years. There may be in the language used some expressions which might be tortured into a suggestion that the bonds are not primarily the obligations of the town, but, we think a fair reading of the opinion justifies nothing more than we intended to point out, which was that the supervisor of the town had no standing to further coptest the questions presented upon the trial of the alternative writ, because the town was not, in its corporate capacity, aggrieved, because the statute in effect merely provided for a use of the credit of the town during the period allowed for the collection of the assessments against the property. We did not suggest that as between the town and persons purchasing the bonds there was any question of the liability of the town; the bonds, under the provisions of section 36 of the Drainage Law, in so far as they relate to third persons, are as much the obligations of the town as though they were issued for any town purpose, and they constitute a lien upon all of the taxable property in such town. The. language of the statute is clear; there is no equivocation. Upon the commissioners certifying the necessary facts, it is made the duty of the supervisor to immediately issue bonds of the town to the total amount named in said statement,” and this court has commanded him to perform this ministerial duty after a hearing, so. that there was a determination that it was a duty enjoined upon him by law, and such a duty could not have arisen if there was any valid question of the legality of the bonds. Ho authority is given, or attempted to be given, to issue anything other than the bonds of the town, and while it is provided in the statute that these bonds are to be paid out of the proceeds of the annual assessments laid upon the lands benefited, the purpose of the statute to make the bonds the obligations of the town is clearly manifest in the provision that “ If in any year the amount collected from said assessments is not sufficient to pay the principal and interest of the town bonds falling due in that year there shall be levied in the next annual tax levy against all the taxable property in said town, in the same manner as other town taxes are levied and collected, an amount equivalent to said deficit in the amount collected from said assessments. Said sum so collected shall be used to pay the balance of said bonds and interest then remaining unpaid.” Having had no doubt of the fact that these bonds were such as to have back of them all of the resources of the town, as much as though they were issued to construct bridges or other public improvements authorized by law, we find ourselves easily in accord with the rule of law asserted in United States v. County of Clark (96 U. S. 211), and the discussion of the court in Horton v. Andrus (191 N. Y. 231, 236).

The fact that there are trifling details relating to the issuing of these bonds which, owing to. the intervening litigation, cannot be literally complied with, does not operate to invalidate them. There is a substantial compliance with the statute in reference to the issiv ing; no rights of any one are prejudiced by the irregularities, and it would lead to many disadvantages to those , who have acted in good faith in reference to this public undertaking to permit any trifling matters to interfere.

The plaintiff should have judgment.

Hirschberg, P. J., Jenks, Burr and Thomas, JJ.-, concurred.,

Judgment for plaintiff in accordance with the terms of the submission, without costs. 
      
      See, also, Drainage Law of 1869 (Chap. 888 ; R. S. pt. 3, chap. 8, tit. 16), § 11, as amd. by Laws of 1901, chap. 523, § 3.— [Rep.
     