
    In the Matter of the Application of Job E. Hedges, as Receiver of the New York Railways Company, Respondent, for a Writ of Mandamus against Charles L. Craig, as Comptroller of the City of New York, Appellant.
    
      New York city — mandamus — counterclaim or setoff may not be interposed in mandamus proceeding to compel public officer to discharge a ministerial duty.
    
    
      Matter of Hedges v. Craig, 194 App. Div. 786, affirmed.
    (Argued March. 7, 1921;
    decided March 22, 1921.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1920, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus and granted said motion. The writ directed the comptroller of the city of New York to audit and allow to the petitioner certain excess taxes paid upon an erroneous special franchise assessment of the New York Railways Company for the years 1912 and 1913, together with interest from the date of payment. The Special Term denied the motion on the ground that the defendant might set off and counterclaim against the railway’s claim for a refund of said excess taxes the city’s claim against the petitioner for the expense of paving. The Appellate Division held that under the existing .statutes the petitioner’s right to a refund of the excess taxes is absolute.
    
      John P. O’Brien, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellant.
    
      Henry J. Smith for respondent.
   Order affirmed, with costs, on opinion of Merrell, J., below.

Concur: HiscocK,Ch. J., Chase, Pound, McLaughlin, Crane and Andrews, JJ. Dissenting: Hogan, J.  