
    THE PEOPLE, on the relation of CORNELL, against NORTON.
    
      Supreme Court, First District;
    
    
      Special Term, August, 1871.
    Mandamus against' Municipal Corporation.— Requisites of Affidavit.—Appropriation of Monet.
    On an application for a mandamus against a municipal corporation to compel payment of a claim which has been duly certified, verified, audited'and allowed, and the correctness and justness of the items of which are positively sworn to by the relator,—general allegations on information and belief, that the bill is grossly extravagant, are not sufficient to justify the court in refusing a mandamus.
    General allegations on information and belief, to the -effect that the appropriation had been exhausted only by illegal payments,—held, in this case sufficiently negatived by the positive affidavit of the comptroller to the contrary.
    Under a statute requiring the comptroller of New York city to raise and pay to the commissioners of the county court house a certain sum to be expended under their direction for the completion of the court house (Laws of 1871, ch. 583, § 7),—Held, that a mandamus might issue, to compel the commissioners to make requisition for payment of, and the comptroller to pay, outstanding claims for work previously done on the building.
    Motion for a mandamus.
    Three several motions were made on behalf of the relator, John B. Cornell, surviving partner of the firm of J. B. & W. W. Cornell, on three several notices of motion, each for a peremptory mandamus, one against Richard B. Connolly, comptroller of the city of Hew York, and two against Michael Horton and others, the commissioners of the new county court house, in the city of Hew York.
    These motions were, however, made on one and the same affidavit, and were heard together, and treated as one motion. The object of all the motions were the same, viz: That the relator might obtain payment of the balance of thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, due on a bill of iron work put into the new county court house, by the firm of J. B. & W. W. Cornell, during the years 1868 and 1869.
    The first motion was to compel the commissioners of the court house, by mandamus, to issue a requisition upon the comptroller for the payment by the comptroller to the relator of the amount due on the bill.
    
      The second motion was to compel the commissioners, by mandamus, themselves to pay to the relator the amount due on the bill out of a sum of money paid over to their credit by the comptroller, upon their requisition, under the provisions of the act of April 19, 1871.
    The third motion was to compel the comptroller, by mandamus, to pay the relator the amount due upon the bill, in the manner and form as he is by law required to do.
    The facts appearing by the relator’s affidavit, and by the affidavits in opposition, are given in the opinion.
    
      Edmund Randolph Robinson and Abraham R. Lawrence, for the relator.
    First division of the argument.—The right to a mandamus directly against the relator.
    I. The bill of the relator was a legal county charge, and was duly audited by the supervisors, and by the county auditor, and was approved by the comptroller, and a partial payment made by him thereon. Every step necessary to authenticate county charges had been taken in regard to this bill prior to the partial payment made by the comptroller, and there can be no dispute as to the legality of the relator’s claim against the county of New York (Supervisors of Onondaga v. Briggs, 2 Den., 26; People v. Stout, 23 Barb., 338, 339 ; 2 Laws of 1857, 286, § 6). All the appropriations for the construction of the court house, made prior to 1870, were, by the express terms of the appropriation acts, made subject to the direction of the board of supervisors, “to be paid by the comptroller on bills audited and allowed by the board of supervisors.” The board of supervisors audited and allowed the bill in question on July 5, 1869, and directed the comptroller to pay it.
    
      II. It follows from the above point, that the relator, at the time the comptroller made the partial payment on account of the bill aforesaid, and thereby approved the same, was entitled to a mandamus against the comptroller, to compel Mm to draw his warrant on the county treasurer for the full amount of such bill, providing the comptroller had, or could have had, funds applicable to the payment thereof (People v. Stout, 22 Barb., 338; People v. Haws, 34 Id., 69; People ex rel. Morris v. Edmonds, 15 Id., 529; People v. Op-dyke, 40 Id., 306; People v. Connolly, 4 Abb. Pr. N. S., 375; People v. Commissioners of Records, 11 Abb. Pr., 114; People v. Commissioners of Records, 2 Keyes, 202; Huff v. Knapp, 5 N. Y. [1 Seld.], 75; Adsit v. Brady, 4 Hill, 620).
    III. Ho action at law could be maintained against the county to recover the amount of the bill (Brady v. Supervisors of Hew York, 2 Sandf., 460; S. C., affirmed, 10 N. Y. [6 Seld.], 260; Chase v. Supervisors Saratoga, 33 Barb., 603; Boyce v. Supervisors Cayuga, 20 Id., 294). In the case of Brady v. Board of Supervisors, above cited, the superior court held that no action for the recovery of a county charge can be maintained against a county or the board of supervisors. Also, that suits against a county can only be brought for such causes of action or controversies as cannot be settled and adjusted by the board of supervisors, in the exercise of their ordinary powers, such as torts, malfeasances of county officers, and the like (2 Sandf., 460). The court of appeals affirmed the decision of the superior court, and it has ever since been regarded as settling the law in this State (10 N. Y. [6 Seld.], 260). In the case at bar the claim of Cornell was a matter of account. The prices charged by him were specified in the contract between. Mm and the county, and the audit and allowance of Ms bill was properly a subject of cognizance and settlement by the board of supervisors. In view of this decision, the allegation of Commissioner Goman, made on information and belief, that the relator’s bill is grossly extravagant, and had not been audited by the commissioners of the court house, is scandalous and impertinent, and cannot be regarded.
    IY. The supervisors having performed their duty in auditing the bill in question, the auditor having performed his duty in examining and allowing the •voucher or bill; the comptroller having approved of the voucher or bill by making a partial payment thereon, and by promising to pay the balance, it thereupon became his duty to pay the same, or to draw his warrant for that purpose (People ex rel. Kelly v. Haws, 12 Abb. Pr., 192). In the case just cited, Mr. Justice Sutherland held, that under the provisions of section 6 of the act of 1857, entitled “An Act relating to the board of supervisors, &c., of New York” (2 Laws of 1857, 285, ch. 590), the comptroller had no power to examine and disallow county charges which had been already examined and allowed by the board of supervisors, but that his power in that respect was limited to the examination of the vouchers. In this case the comptroller approved of the voucher by making a payment thereon and promising to pay the balance (See, also, People ex rel. Hall v. Supervisors N. Y., 32 N. Y.. 473).
    V. The next question then is, whether anything has occurred since the audit of this bill in 1869, which takes away or in any manner affects the right of the relator still to have a mandamus against the comptroller, commanding him to pay the balance due upon the bills set forth as a part of the moving papers herein. (a.) It appears by the affidavit of J. B. Cornell, the relator, that from the year 1862 to and including the year 1866, large sums of money, amounting to more than the sum of two million six hundred thousand dollars were raised under acts of the legislature of the State of New York, which sums were directed to be paid by the comptroller on bills for work and materials furnished for the court house, in the city of New York, audited and allowed by the board of supervisors of the county of New York. For convenience of reference, we cite the acts referred to in his affidavit: Laws of 1862, 335; Laws of 1864, 497; Laws of 1865, 1253; 2 Laws of 1866, 1893. And it further appears, that in the year 1867, the board of supervisors were directed to raise the further sum of eight hundred thousand dollars for the same purpose (2 Laws of 1867, 1994). (5.) In the tax levy of 1868, the legislature directed that, “for the completion, fitting up and furnishing of the new court house in the said county, now near completion, the comptroller of the city of New York is hereby authorized and directed to raise the necessary money, - not exceeding eight hundred thousand dollars, on the stock of the said county, in the usual form, payable within twenty years, in five annual installments, said stock to bear interest at a rate not exceeding seven per cent, per annum. The said stock shall be designated and known as the New York county court house stock, No. 2, and the issuing of the same shall conform so far as applicable to the provisions of this act to chapter 167, Laws of 1862, and the act, chapter 242, Laws of 1864, relative to said court house. The money so raised shall be paid by the comptroller on bills audited and allowed by the board of supervisors of said county” (Laws of 1868, 2031, ch. 254, § 1). In the tax levy of 1869, the legislature directed that, ‘1 Sec. 4. For the completion, fitting up and furnishing of the new court house in said county, now near completion, the comptroller of the city of New York is hereby authorized and directed to raise the necessary money, not exceeding six hundred thousand dollars, on the stock of the said county, in the usual form, payable within twenty years, in five annual installments, said stock to bear interest at a rate not exceeding seven per cent, per annum. The said stock shall be designated and known as the ‘ New York county court house stock, No. 3,’ and the issuing of the same shall conform so far as applicable to the provisions of this act, to chapter 167 Laws of 1864, relative to said court house. The money so raised shall be paid by the comptroller on bills audited and allowed by the board of supervisors of said county” (2 Laws of 1869, 2116, ch. 875, § 4). It is worthy of remark in this connection, as bearing upon the right of the relator to a mandamus against the comptroller, that the acts of 1868 and 1869, above referred to, made it specifically the duty of the comptroller to pay out the moneys thereby authorized and directed to be raised, “ on bills audited and allowed by the board of supervisors of said county,” thus giving him no discretion in the matter, and rendering it unnecessary that the bills should be audited by the county auditor or approved by the comptroller. As such audit and approval were, however, obtained in this case, it is, perhaps, immaterial whether the above is the correct construction of these statutes. In other words, the relator’s bill has not only been audited and allowed by the supervisors, as these acts require, but it has also been examined, allowed and aproved by the act of 1857 (2 Laws of 1857, 285). Thus it appears that, in 1869, the comptroller had, or had the means of having, six hundred thousand dollars in his hands, out of which the bill of the relator was payable, and out of which it could have been paid in full (See People n. Stout, 23 Barb., 338, and other cases, supra). It will be borne in mind that the relator’s bill was audited July 8, 1869. No payment was made thereon until December 6, 1869. Why this delay occurred in making the partial payment, we are not informed, but the fact is clear that the comptroller cannot say, that between the audit of the bill and the partial payment, he had not sufficient funds with which to meet the whole bill. If the comptroller has exhausted this appropriation of six hundred thousand dollars, it is his duty, and the onus is on him, to make that fact appear. The presumption is that he has not exhausted it, and until that fact is shown beyond dispute, there can be no answer to the relator’s application for a mandamus, (c.) It' is specifically alleged in the relator’s affidavit, that the'time of the auditing and allowance of his bill, on July 5, 1869, and at the time of demand for payment made on the comptroller, there was remaining in the hands of the said comptroller of the said above-mentioned appropriations, or some of them, applicable to the payment of said bill, a sum of money far more than sufficient to pay the said bill in full. This allegation is not denied or answered in the comptroller’s affidavit, in any shape, form or manner. (d.) Again, it is specifically alleged in the relator’s affidavit, that in the spring of 1870, large sums of money were paid by the comptroller to Mr. Garvey for work claimed to have been done by him on the court house long subsequent to the audit of the relator’s bill, and prior to the passage of the act of 1870, by which the direction and control of the court house was transferred to the commissioners. These payments to Garvey are set forth in detail, item by item. This allegation is not denied or answered in the comptroller’s affidavits in any shape, form or manner, (e.) Again, it is alleged that the payments to Garvey were illegal and fraudulent, 61 that they were largely in excess of the amounts to which the said Garvey was entitled for the labor and materials furnished by him to said court house, and that bills for the amounts of said payments, or some of them, were not presented, audited, and allowed in the manner required by law, and that said payments, or some of them, were made by the said comptroller without the proper vouchers therefor and in. violation of law.” All that the comptroller answers to these specific allegations is that “he has no funds legally applicable to the payment of the claims set forth in said proceedings,” and “that all the moneys which have been authorized by the legislature to be raised from time to time for the purposes of the new county court house have been expended in accordance with the statutes made therein, save only funds remaining in the county treasury authorized and directed to be raised by the legislature of 1871, and that no payments for or on account of said court house have been made by him, unless in accordance with law, as he is advised.” (/.) We earnestly maintain that this does not amount to a denial of the specific allegation contained in the relator’s affidavit. The only fact alleged in the comptroller’s affidavit is the actual exhaustion at the present time of all the appropriation prior to 1871, out of which the relator was entitled to be paid. The other allegations are mere allegations of conclusions of law, and the specific facts stated by the relator showing that the previous appropriations were .not legally or in contemplation of law exhausted, stand admitted. The circumstances that these facts are stated, by the relator upon information and belief do not in any way weaken the force of the admission made by the comptroller. He has not denied them, even upon information and belief (Union Bank v. Mott, 9 AN). Pr., 106).
    YI. We therefore submit that the relator having been clearly entitled to payment by the comptroller, out of the appropriations above mentioned, and having fully complied with all the prerequisites to such payment, it is no excuse for the comptroller to say, that since the relator’s bill was audited, and demand of payment made, he has exhausted this fund, when he does not show that he has exhausted it in the payment of bills to which such fund was legitimately applicable, and when the relator does show, without denial, that a large portion of it has been misappropriated, by the payment of illegal and fraudulent claims. To the extent that legal payments are not shown, or to the extent that illegal payments have been made, it is as if the money were in the treasury, so far as our application is concerned. The relator, with a bill, admitted to be correct, and regularly audited, had a vested right to be paid out of these appropriations, or at all events to be paid out of these appropriations, as far as they would go, pro rata with others, whose bills had been audited at the same time or subsequent to his own. The comptroller had no right to exclude him and pay others in full, whose bills were either not audited at all, or were audited subsequent to his. To pay Garvey’s claims out of the balance of the appropriations of 1869, and of previous appropriations, which the comptroller had in his hands, was a fraud on the relator, whose work was performed, and whose bill was audited, long before Garvey did any work. Even if the “Garvey” bills were bona fide, regularly audited for work duly done, the comptroller had no right to do this. A ' fortiori, if the “Garvey” bills were fraudulent, not duly audited, and paid collusively, in violation of law, as is alleged in the affidavit. It is like the case of an executor, to whom a claim has been regularly presented, and by whom it is allowed, and who afterwards undertakes to plunder or squander the estate, or even to pay out all of it to other creditors. Would no assets be an answer to the claimant thus excluded when he comes for his pay ? Besides, it is settled: Mandamus will lie, notwithstanding the act has already been performed in behalf of another. It is no ground for refusing mandamus to the sheriff, requiring him to execute a deed, that he has already executed one to another person, who has conveyed to a bona fide purchaser. The sheriff must do his duty (People v. Fleming, 2 BT. T. [2 Corast.}, 484). So mandamus will lie to compel county commissioners to certify that the petitioner had a majority of the votes, although another had been declared to the ■ county treasurer, and is in possession of the office (Ellis v. Commissioners, 2 Gray [Mass.], 370). So to put a minister of any religious sect in possession of the pulpit to which he is entitled, notwithstanding such pulpit is occupied by another person (People v. Steele, 2 Barb., 398). Edmonds, J., says: “It would otherwise make the wrong done a complete barrier of itself to all adequate remedy for it.” The case of People r>. Stout, county treasurer of Few York, (23 Barb., 338), is controlling authority on this point. In the case just cited, wher'e the county treasurer sought to excuse himself for not paying a county charge out of a specific sum which had been raised for county contingencies, by showing that said sum had been spent in paying claims against the city of Few York, the court held that the fact was no excuse, and directed that a peremptory mandamus issue (Per Davies, J., pp. 348, 349).
    VII. If, however, the court should be of the opinion that the “exhaustion” of the appropriation of 1869 and of the previous appropriations, even though an illegal and fraudulent exhaustion, is an answer, so far as these appropriations are concerned, to our application for a peremptory mandamus against the comptroller to pay the relator the amount due him, we submit that: 1. The appropriations of 1870 and 1871 are also applicable to the payment of the amount due on the relator’s bill, and the bill should be paid out of the balance of the appropriation of 1871, which it is admitted has not been exhausted, (a.) The act of the legislature of this State, commonly known as the county tax levy of 1870, contains the following provision: “ Sec. 11. To provide for the final completion of the new county court house in Few York, the mayor of said city is hereby authorized and empowered to appoint four commissioners, and upon the appointment of said commissioners, all powers of the board of supervisors of the county of Mew York over the erection of said court house shall cease. The said commissioners shall have the power to expend, and shall complete said court house for a sum not exceeding six hundred thousand dollars, which amount the comptroller of the City of Mew York is hereby authorized and directed to raise-on the stock of the county of Mew York—said stock to be in the usual form, and payable within twenty-five years from the passage of this act, and bear interest at a rate not exceeding seven per cent, per annum. The said stock shall be designed as the ‘Mew York court house stock, Mo. 4,’ and the issuing of the same shall conform, so far as applicable to the provisions of this act, to chapter 177, Laws of 1864, relative to said court house. The money so raised shall be paid by the comptroller, on vouchers approved by the commissioners herein authorized, and to be filed in his office. The board of supervisors of the county of Mew York are hereby authorized and directed to order and cause to be raised, by tax upon the estates by law subject to taxation within the city and county of Mew York, an amount sufficient in each year to pay the interest on the stock herein authorized, and that issued by previous authority, and also an amount sufficient to pay and redeem the stock hereby and heretofore authorized for the aforesaid purposes at its maturity” (1 Laws of 1870, 880, § 11, ch. 382). And by the act of 1871, ch. 583, the legislature further directed that: “ Sec. 7. For the completion of the Mew York county court house, the sum of seven hundred and fifty thousand dollars is hereby authorized to be appropriated, to be expended under the direction and supervision of the commissioners appointed under the provisions of section 11, chapter 382, of the laws of 1870, to provide for the completion of the new county court house in the city of New York. And the comptroller of the city shall, on requisition of the commissioners of said county court house, pay over to their credit such sum or sums as they may from time to time deem necessary for said purpose. The comptroller of the city of New York is hereby authorized and directed to raise said amount on the stock of the county of New York; said stock shall be in the usual form, and payable within twenty-five years from its issue; said stock shall be designed as ‘ New York county court house ■ stock, No. 5,’ and the issuing of the same shall conform, so far as applicable to the provisions of this act, to chapter 177 of the Laws of 1864, relative to said court house. The board of supervisors of the county of New York are hereby authorized and directed to order and cause to be raised, by tax upon the estates by law subject to taxation, within the city and county of New York, an amount sufficient in each year to pay the interest on such stock, and also an amount sufficient to pay and redeem said stock at its maturity.” (5.) It appears, then, that the appropriations of 1868 and 1869 were for the “ completion, fitting up, and furnishing of the new court house,” and the appropriations of 1870 and 1871 were also “for the completion of the new court house.” There is, therefore, no difference in these appropriations, and the work of the relator having been done toward the completion of the court house, comes within the scope of all of them. So far as the purpose and object of these appropriations are concerned, they are substantially the same as those of the previous appropriations, which are admitted to be applicable. The position may, however, be taken that the appropriations of 1870 and 1871 cannot be applied to the payment of bills audited for work done in 1868 and 1869, towards the completion of the court house, but are only applicable to work done after, and ordered after, these appropriations were made, and after the appointment of the commissioners. This position will not bear examination. The legislature must be presumed to have been aware of the condition of things at the time these appropriations were made, and, therefore: It cannot be supposed that the legislature intended that new work should be ordered and paid out of these appropriations, while bills, duly audited, for work already done, were to be left unpaid and unprovided for. An appropriation to “ complete” the court house is an appropriation, in the first place, to pay the bills for work already done, and which previous appropriations for the same purpose have not been adequate to pay ; and, in the next place, to pay, as far as the appropriation will go, for such new work as may be adequate to finish the structure in question. It cannot be supposed that the legislature intended, in making appropriations to complete the building, to leave unpaid and unprovided for bills contracted by competent authority, and justly due for work done towards the completion of the building. The court will not construe the act so as to make it in effect “An act to repudiate the obligations of the county of Hew York.” The Cornells’ contract is a continuing contract, and they have done work under it for a series of years, and there is still work to do. under it. If the position taken were sound, the Cornells could only get paid out of the appropriation of 1868 for work done subsequently to the date of that appropriation, and out of the appropriation of 1869 for work done subsequently to the date of that appropriation, and so with respect to the appropriations of 1870 and 1871, so that for work done previously to the date of either of these appropriations the relator will be without remedy, if previous appropriations are exhausted. The commissioners may commit any extravagances for new work, but must leave work already done unpaid for. No contractor on the face of the earth could go on and complete his contract if the work already done was not only left unpaid for but unprovided for. The court will not give a construction to the language of the legislature which leads to this absurd and monstrous result, unless compelled to do so. (e.) This point has, however, been determined by an express adj adication in our favor. We allude to the case of People ex rel. Downing v. Rushmore, Supervisor of the town of Mamaroneck, which was decided by the general term of the second department in January, 1871. That case arose on the following state of facts: In 1868 the legislature passed an act to regulate, &c., the Westchester, &c., turnpike road. The road passed through several towns in the county of Westchester, and the work was to be done under the supervision of certain commissioners, who were appointed by the act. It was also provided that the supervisors of the towns aforesaid should be authorized and required to borrow on the credit of each town, by the issue of bonds of each of said towns, such sums of money as might be required to perform such work within the limits of each town respeclively, according to the distance of such highway therein, but the amount so borrowed was not to exceed in the aggregate the sum of ten thousand dollars per mile. It was made the duty of the supervisor of each town, on the requisition of the commissioners, to pay the amount due from said town by the issuing of bonds, &c. (2 Laws of 1868, p. 1118-19, &c.). The commissioners proceeded with the work, and expended or incurred a liability for a greater sum than ten thousand dollars per mile, in each town ; and accordingly an act was passed in 1870, the first section of which is as follows:—“Sec. 1. The supervisors of the towns of West Farms, Westchester, Eastchester, Pelham, New Rochelle, Mamaroneck, and Rye, are hereby authorized, directed and required to borrow on the credit of their respective towns, by the issue of bonds of each of said towns, the further sum of ten thousand dollars per mile, in addition to the amount appropriated by chapter 549 of the Laws of 1868, for the purpose of completing the Westchester Turnpike and Boston post-road, in the manner provided for in said act” (2 Latos of 1870, p. 1460). The supplementary act contained provisions virtually similar to those of the original act in regard to the duty of the supervisor to issue the bonds of his town in payment for the work. A requisition was drawn upon the respondent Rushmore, as supervisor of Mamaroneck, requiring him to issue bonds of said town, in the sum of four thousand five hundred dollars, and it appeared upon the face of said requisition, that all of the work for which said amount was claimed to be due had been performed and completed prior to the passage of the act of 1870. On that ground, among others, he refused to comply with the requisition of the commissioners. A motion was made for a peremptory mandamus to compel him to issue the bonds, and he resisted the motion on the ground that he was only required to issue bonds to pay for work which had been performed for “ the purpose of completing” the work; that it' appeared that all the work for which pay was sought had been performed before the passage of the supplementary statute, and that that statute referred to future work, and not to such as had already been done. This question was discussed both by counsel for relator and respondent, and a mandamus was directed to be issued by the special term, Mr. Justice Pratt presiding. On appeal to the general term, the same question was discussed by both counsel, and the ■general term (present, Barnard, Gilbert and Tap-pan, JJ.), affirmed the order below. No appeal was taken to the court of appeals, (d.) Besides, it appears that the comptroller and the commissioners have already practically given the very construction to the language of these appropriations which we claim to be correct. The moving papers show that they have actually paid out of these appropriations alleged claims to a large amount for work ordered or done prior to the time these appropriations were made, and prior to the appointment of the commissioners. And the comptroller expressly promised the relator to pay the amount due on his bill out of the appropriation of 1870. How then can it be claimed that the payment of the amount due on his bill does not come within the scope and object of these appropriations? Why were these promises given ? Because they were given in accordance with the true, practical, common sense construction of the appropriation acts—the construction which any man of ordinary capacity would give to the language employed, and which has already been given by the courts in a similar case. They show that the construction now contended for is not the plain, natural one, and is not urged sincerely or in good faith, but is merely an afterthought, devised for the purpose of this dilatory and vexatious defense. If this construction is now claimed by the comptroller, he not only stultifies himself but places himself in this dilemma. He cannot claim on the grounds above stated that Cornell’s bill is not entitled to be paid out of the unexausted appropriation of 1871, without confessing that such of the payments made to Garvey as were made out of the appropriations of 1870, were on these grounds alone (without reference to their admitted extortionate and fraudulent character) misapplications of that appropriation. If on the other hand he claims the “ Garvey” payments to have been legally made, he concedes that Cornell’s is payable out of the appropriation of 1871. (e.) Section 4 of the act of 1870 does not militate against the construction claimed for the act of 1870, and more particularly for the act of 1871. That section is as follows :—“Sec. 4. All liabilities against the county of Hew York, incurred previous to the passage of this act, shall be audited by the mayor, comptroller, and present president of the board of supervisors, and the amounts which are found to be due shall be provided for by the issue of revenue bonds of the county of Hew York, payable during the year 1871, and the board of supervisors shall include in the ordinance levying the taxes for the year 1871 an amount sufficient to pay said bonds and the interest thereon. Such claims shall be paid by the comptroller to the party or parties entitled to receive the same, upon the certificate of the officers named herein” (1 Laws of 1870, 880, ch. 882, § 4). This section clearly does not apply to claims for which special appropriations had been made, and which had already been duly audited, so as to entitle them to payment out of those appropriations. 2. Ho other vouchers are necessary to entitle the relator to payment out of the unexhausted appropriation of 1871 in addition to those which are annexed to the moving papers, and the relator is therefore entitled to a mandamus directly against the comptroller to compel payment out of that appropriation. The direction that the comptroller should pay over, on requisition of the commissioners, contained in the act of 1871, &o., refer only to future obligations. These statutes do not mean that where a bill had been regularly audited, examined and allowed, and thus become a legal debt of the county, the commissioners should also go through with the formality of approving of the claim, or drawing a requisition therefor. Such a construction would be opposed to the common sense view of the subject, and would amount to charging the legislature with the design of requiring unnecessary circuity of action in regard to claims already decided by the appropriate tribunal, i. e., the board of supervisors, to be legal and valid.
    
      VIII. With respect, therefore, to the unexhausted appropriation of 1871, as well as with respect to the illegally and fraudulently misapplied appropriations of previous years, the relator is entitled to a mandamus directly against the comptroller, commanding him to pay the relator the amount due on his bill.
    Division second of the argument.—As to the relator’s right to a mandamus against the commissioners.
    IX. If this court should hold, in opposition to the views submitted by the relator under the first division of the argument, that the illegal and fraudulent exhaustion of the appropriations, prior to 1871, deprives him of his remedy directly against the comptroller, and also ‘that with respect to the unexhausted appropriation of 1871, the requisition of the commissioners is a necessary preliminary voucher to entitle him to such remedy, we submit that: The relator was legally entitled to receive this voucher from the commissioners, and it was their' duty to give it. He formally demanded it of them, but has not been able to obtain it, and thereupon made the motion for a mandamus, to compel them to give it. If, therefore, this voucher was necessary as a preliminary to payment by the comptroller, it is the duty of the court to grant this, motion against the commissioners, and it is also the duty of the court to grant the further motion against the comptroller, and to compel him, on receiving such requisition, to take the necessary steps directed by the act of 1871, to raise the money called for by the requisition, and with it to pay the relator.
    X. Neither the commissioners nor the comptroller take the objection in their affidavits that the appropriation of 1871 is not applicable. That objection, if taken on this argument, has been already sufficiently answered under point 7.
    XI. The principal objection is that taken by the commissioners, that it was not their duty to give the requisition until after the bill had been reaudited by them. To this we say: (1.) The only difference between the appropriations of 1870 and 1871 and the previous appropriations is, that the previous appropriations were made by the legislature, subject to the direction of the board of supervisors, while these appropriations are made subject to the direction of certain commissioners, who are appointed in the place and stead of the board of supervisors to superintend the construction and completion of the court house. (2.) The effect of the act is therefore merely to make these commissioners successors in office of the old board of supervisors, so far as this particular work is concerned. The audit and allowance by their predecessors in office is as binding upon them as the audit and allowance by one board of supervisors would be upon a board subsequently elected, especially when no pretense is made that the bill is incorrect, or that the audit and allowance were fraudulent or improperly made. (3.) And it is settled that the audit and allowance of accounts against the county by the board of ■> supervisors, who had the authority to make such audit and allowance, is a judicial determination conclusive upon themselves and upon their successors in office. (Supervisors of Chenango v. Birdsall, 4 Wend., 453; Supervisors of Onondaga v. Briggs, 2 Den., 26, 39; People v. Supervisors of Schenectady, 35 Barb., 408; People v. Stout, 23 Barb., 344; People v. Ames, 19 How. Pr., 551; Huff v. Knapp, 1 Seld., 65; People v. Champion, 16 Johns., 61; People v. Collins, 19 Wend., 56). It is held, that if a writ of mandamus is granted against a board of supervisors, and their term of office expires, it will devolve upon their successors to obey the writ (People v. Champion, supra; People v. Collins, supra). Now in this case the commissioners having succeeded to the powers of the board of supervisors, in respect to the erection and completion of the court house; they are just as much bound by the action of the supervisors of 1869 as the supervisors of 1870 or 1871 would have been, if that board 'had still retained control of the work of building the court house.
    XII. No reaudit is necessary.
    XIII. The only objection to the order remaining to be considered is that of the comptroller. He raises the objection that with respect to him the mandamus is premature, that however clear may be the right of the relator to be paid out of the appropriation of 1871, this court has no power to direct payment on the present application; that is to say, that to obtain relief the relator must first take a proceeding by mandamus against the commissioners to obtain their requisition, and bring that proceeding* to a successful termination; secondly, when that is done and not before, take a second proceeding by mandamus against the comptroller .to compel him to raise the money which the act of 1871 directs him to raise, and bring that proceeding to a successful conclusion, and when that is done, and not before, he may take a third proceeding to obtain a mandamus directing the comptroller to pay.
    XIY. The objection is merely technical. The comptroller admits that if the requisition is issued, the relator is entitled to be paid by him out of the appropriation of 1871. Why then should he object to a direction to that eifect being incorporated in the present order ? Why should he insist that we be compelled to take two further proceedings against him to compel him to discharge his duty ? The court may make the order on the present motion under the alternative prayer for general relief in the motion against the comptroller, and under the authority of the following cases: People n. Auditors of Westford, 53 Barb., 563; affirmed in the court of appeals; People v. Commissioners of records, 11 Abb. Pr., 117; People v. Haws, 12 Id., 71, 72; S. C. at general term, 34 Barb., 69; S. C. in court of appeals, 2 Keyes, 292). The latter case decides that it is possible in the same proceeding by mandamus to establish the right and to enforce it.
    XY. In conclusion, we present to the court this state of facts: (A.) The relator has a legal contract with the county of New York for the iron work upon the court house. (B.) He has honestly and fairly performed his work under the contract at the prices agreed upon on November 17, 1863, when it was executed. (&) He earned at these prices sixty-five thousand five hundred and ninety-nine dollars and eighteen cents, and his bill for that amount was duly audited by the supervisors, examined and allowed by the auditor, and "approved by the comptroller, who, on December 6, 1869, paid the relator thirty-two thousand seven hundred and ninety-nine dollars and fifty-nine cents, on account of the same. (D.) Since December 6, 1869, the relator "has not received a single dollar on account of this claim, although its payment has been repeatedly promised by the comptroller. (E.) During 1869, 1870 and 1871, the sum of one million nine hundred and fifty thousand dollars has been raised for the erection and building of the court house. (P.) The relator has no right of action against the county on his contract, and is remediless unless he obtains relief on these motions.
    
      Richard O' Gorman and W. O. Trull, for the comptroller.
    I. The answer of the comptroller that he has no moneys applicable to or appropriated for the payment of the relator’s claim is a perfect defense to the application for a mandamus (People v. Tremain, 29 Barb., 96; People v. Connelly, 2 Abb. Pr. N. S., 321; People v. Burrows, 27 Barb., 89).
    II. Even if the appropriation of six hundred thousand dollars made by the act of 1870 remained in the treasury subject to the warrant of the comptroller, still the relator would not be entitled to payment out of that fund, (a.) The clause, in the act of of 1870, making the appropriation of six hundred thousand dollars, expressly provides “the money so raised shall be paid by the comptroller, on vouchers approved by the commissioners herein authorized, and to be filed in his office.” There is not a pretense in the motion papers that the relator’s claim, or any voucher therefor, has ever been approved by the court house commissioners. The allegation upon information and belief in the motion papers that payments have been made to other parties, out of the appropriation of 1870, by the comptroller, without proper vouchers, does not strengthen the relator’s case. If such payments were made without proper vouchers they were illegally made, and in direct violation of the statute which requires vouchers and directs by whom they shall be approved. The relator’s vouchers are not so approved, yet, in defiance of the statute requiring such approval, he asks the court to compel the comptroller to perform for him the very act he complains of as having been done for another.
    III. The appropriations of 1870 and 1871 are neither of them applicable to the payment of the relator’s claim, (a.) The act of 1870 was passed April 26, 1870 (Laws of 1870, ch. 382). By section 4 of that act it is provided, “All liabilities against the county of New York, incurred previous to the passage of this act, shall be audited by the mayor, comptroller, and prese ent president of the board of supervisors,” .... and then provides for the payment of the amounts found due by the issue of revenue bonds, and directs the comptroller to make such payment upon the certificate of the mayor, comptroller, and president of the board of supervisors. The relator’s bill is for work done and materials furnished between July7, 1868, and May 1, 1869, and is therefore a “liability incurred previous” to the passage of the act of 1870, and clearly within the provisions of that act as to audit and payment. It is no answer to this position to say, that the relator’s bill had been audited by the board, of supervisors prior to the passage of the act of 1870. The statute contains no words of exception. The words used, “ all liabilities,” are the broadest and most comprehensive that could possibly have been selected, and plainly include the relator’s claim. It was entirely competent for the legislature to require a new audit of the relator’s bill, and to make special and particular provision for its payment, and it did so in plain terms by section 4 of the act of 1870. (5.) The legislature having, by section 4 of the act of 1870, made special provision for the payment of all liabilities against the county, including that to relator, it follows, upon every principle of reason and construction, that the subsequent appropriations made by the legislature, by the acts of 1870 and 1871, for the completion of the county court house, are not applicable to the payment of' the relator’s claim. The acts of 1870 and 1871 expressly declare that the appropriations thereby made are for the completion of the court house. The payment for work previously done on the court house, out of the appropriations of 1870 and 1871, would not advance its completion a single step. A construction of the acts of 1870 and 1871, which should render those appropriations applicable to the previous indebtedness, would not only violate the express provisions of those acts, but would also work great injustice to parties who, upon the faith of those appropriations, have furnished materials and performed work under employment of the new commissioners.
    IV. The case made by the relator fails to show any duty owing to him under the act of 1871. (a.) The relator, in his motion papers, charges that, by the act of 1871, seven hundred and fifty thousand dollars was authorized to be appropriated for the completion of the court house. It is true that the act of 1871 authorizes that sum to be appropriated, but that act does not make such appropriation, but, on the contrary, provides that the board of apportionment created by section 8 of the act (2 Laws of 1871, p. 1269, § 3) shall make such appropriation subject to the limitation contained in sections 1 and 2 of the act. The fact that section 7 of the act of 1871 authorizes seven ’ hundred and fifty thousand dollars to be appropriated is not an appropriation of that or any other sum for the purpose named. That sum was mentioned doubtless as the maximum sum to be appropriated for the court house, Until the board of apportionment by action under section 3 of the act declared what sum should be expended on the court house there could be no appropriation whatever for that purpose. It ■ does not appear that the board of apportionment has ever apportioned any sum for expenditure upon the court house, (b.) Whatever duty the comptroller owes under the act of 1871, he owes to the court house commissioners, not to the relator. The statute requires the comptroller do pay to the commissioners, not to the relator. He is to pty upon the requisition of the commissioners, and in such sums as they deem necessary, (c.) Before the comptroller, under the act of 1871, could, under any reasonable construction of the act, owe any duty to the relator, it should appear : 1. That the board of apportionment had appropriated and apportioned the seven hundred and fifty thousand dollars, or some portion thereof, to the completion of the court house. 2. That the commissioners of the court house had made requisition for the amount of the relator’s bill, and the comptroller refused to honor the requisition. Neither of these facts appear. On the contrary, it affirmatively appears that the commissioners refuse to recognize the relator’s claim, and that they have never made any requisition on the comptroller for its payment.
    
      Ambrose Monell, for the commissioners.
    I. The comptroller should not be compelled to pay the relator the amount of his bill. 1. The commissioners herein derive their existence from the county tax levy of 1870. Laws of 1870, p. 880, ch„ 382, § 11. 2. Prior to this act the entire construction of the county court house had been under the supervision and direction of the board of supervisors of the county of Hew York, and by the act in question it will be seen that upon the appointment of the commissioners all powers of the board of supervisors over the erection of said court house should cease. The comptroller of the city of Hew York was also by said act authorized to raise the sum of six hundred thousand dollars, which was to be used by the commissioners in the completion of the court house. The money so raised was to be under the control of the comptroller, and was to be paid by him on vouchers approved by the commissioners. 4. The commissioners were appointed in the latter part of the year 1870, and immediately thereafter entered upon their duties. Ho part of the said amount of six hundred thousand dollars, provided for by the act of 1870, was ever received or expended by them. 5. In the act of 1871, passed April 19, 1871, the legislature made a further direction in regard to the court house. 6. It will be seen, by a comparison of the two acts, that there is a material difference in the mode in which the amount to be raised under each act is to be expended. (a.) The act of 1870 makes the comptroller of the city of Hew York the disbursing officer, whereas, by the act of 1871 the comptroller is to pay over to the credit of the commissioners such sum or sums as they may from time to time deem necessary. 7. But nowhere in either act is there any authority permitting the comp-. trailer to pay any bill without the consent of the commissioners. (a.) Under the act of 1870, he could not pay except on vouchers approved by the commissioners, and (5.) Under the act of 1871, the actual payment of all bills is to be made by the commissioners themselves.
    II. Unless the account of the relator has been submitted to the commissioners for their audit and approval they cannot by mandamus be compelled to pay it. 1. It is no answer to this that the account has already been audited and approved by the board of supervisors. The commissioners are not the successors of the board of spervisors. The supervision of the county court house was but a portion of their duties. The same routine had to be gone through with in collecting a bill for work done on the court house as in collecting a bill for any other county work. The board of supervisors were not legislated out of office by the act in question. They were not affected' by it except in this one particular, that upon the appointment of the commissioners their power over the erection of the court house was to cease. 2. The act of 1870 conclusively shows that no part of the appropriation of six hundred thousand dollars could be expended by the comptroller, except upon vouchers approved by the commissioners. The discretion was thus given the commissioners to allow or reject claims as they might see fit, and the comptroller could not pay or be compelled to pay any bill, unless first audited and approved by the commissioners. 3. This power conferred on the commissioners by the act of 1870, is not taken away by the act of 1871, but, on the contrary, their power in this respect is increased ; instead of the comptroller being the custodian of the funds to be raised and expended on the court house, the commissioners themselves are not only to direct how it shall be expended, but are actually to disburse it. “The comptroller of the city shall, on requisition of the commissioners of said county court house, pay over to their credit such sum or sums as they may from time to time deem necessary.” The commissioners are thus, from time to time, to pass upon claims for work done on, or materials furnished to, the court house,, and having arrived at the amount due, are then to make their requisition on the comptroller for an amount sufficient to pay the amount then owing, and upon said amount being passed to their credit they draw their warrants in payment of the various bills.
    III. The bill of the relator having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and found correct by the auditor, and paid in part by the comptroller, the liability is fixed, and no proceeding can be had against the commissioners to compel payment. 1. The bill was audited, allowed, and part paid before the commissioners came into existence. The relator had his remedy by which he could have enforced the payment of the balance due on his bill, and nowhere does it appear that that remedy is gone.
    IV. The commissioners were appointed for the sole purpose of completing the county court house, and therefore they are clearly not chargeable with the payment of bills for work done on the court house long prior to their appointment. 1. This appropriation of1 seven hundred and fifty thousand dollars, appropriated by section 7 of the act of 1871, and out of which appropriation the relator is directed to be paid, was “ for the completion of the New York county court house.” 2. The act under which the commissioners were appointed provided that they should expend and complete said court house for a sum not exceeding six hundred thousand dollars, and this amount being exhausted, and the building still uncompleted, the further appropriation of seven hundred and fifty thousand dollars was provided for in the act of 1871. 3. The words “complete ” and “ completion” cannot possibly be so construed as to authorize the commissioners to pay indebtedness which accrued prior to the appropriation. At the time the appropriation was made the court house was, and in fact still is, an incomplete and unfinished building. The appropriation was made for the sole purpose of making it a complete and finished building. Suppose the county of New York was, prior to the act of 1871, indebted for work done on the county court house in an amount exceeding seven hundred and fifty thousand dollars ; can it for one moment be contended that the payment of this amount by the commissioners would complete the building % 4. Neither the act of 1870 nor 1871 warrants any such belief. The building was incomplete, and all the legislature had in view when they authorized the appropriations contained in section 11 of the act of 1870 and section 7 of the act of 1871 was to provide funds to render the building complete. 5. That such was the intention of the legislature is clearly shown by reference to section 4 of the act of 1870. It is conclusively shown by this section that the legislature had just such claims as the one in controversy in view when the act was passed. The bill of the relator was a liability against the county of New York, and against no other body or corporation. It was a fixed liability, and was incurred prior to the passage of this act; and the fact is the officers mentioned in said act did meet as a board of audit, and audit many claims which existed against, the county, and the comptroller paid the same. Had the relator seen fit to have presented his claim to the notice of the said officers, they would have been compelled to provide for to provide for its payment. 7. In order to sustain the theory that the words “to complete” and “completion” apply equally to the payment of past indebtedness as well as to future work, the case of People #. Rushmore, is cited, in which case it was held by the general term of the second department that where the legislature appropriated money for the purpose of completing the Westchester turnpike and Boston post road, the court could, by mandamus, compel payment for work done on the turnpike prior to the appropriation. (a.) Without conceding the correctness of this decision, it is sufficient for the purposes of this case to say that nowhere in the act making such appropriation was there any provision providing for the payment of past indebtednesss for work already done. (5.) Section 4 of the act of 1870 distinctly provides for the payment of liabilities against the county of Hew York, and had there been such a section in the act referred to in the above case, it cannot for one moment be contended that any such construction would have been put on it.
   Sutherland, J.

The application is for a mandamus to the commissioners of the new county court house, or to the comptroller, or to both.

If the mandamus goes to the commissioners, the application is that it goes to them commanding them to pay the relator or surviving partner of the late firm of J. B. & W. W. Cornell, thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, with interest thereon from December 7, 1869, out of the sum of two hundred thousand dollars heretofore placed to the credit of the commissioners by the comptroller, pursuant to section 7 of the act of April 19, 1871, or commanding the commissioners forthwith to issue their requisition upon the comptroller, requiring him to pay over to the relator the said sum of thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, with interest as aforesaid. The application is made upon three several and distinct notices of motions for a mandamus founded upon one and the same affidavit of the relator. The case made by this affidavit, as briefly as is consistent with perfect clearness stated, is this :

The relator is the sole surviving partner of the late firm of J. B. & W. W. Cornell, manufacturers of iron for building in the city of New York. By the act of April 10, 1861, the board of supervisors of the city of New York were authorized to direct and superintend the construction of a court house on certain lands in the city of New York, which, by the act, they were authorized to take for that purpose.

Under and in pursuance of said power, the board of supervisors, on November 17, 1863, entered into a contract with the said firm of J. B. & W. W. Cornell (a copy of which and of the specifications therein referred to is annexed to the affidavit) in and by which the said firm agreed to furnish and deliver certain work, labor, and materials mentioned in the contract and the specifications thereto annexed.

That besides work, labor, services and materials furnished and delivered by the said firm prior to July 7, 1868, for which bills had been rendered, audited by 'the board of supervisors and paid by the comptroller, the said firm, under and in pursuance of the contract, furnished and delivered in and towards the erection, and construction, and completion of the said court house, work and materials to the amount of sixty-five thousand five hundred and ninety-nine dollars and eighteen cents, the items thereof being contained in a certain bill which had been rendered to and audited by the board of supervisors, a copy of which bill is annexed to the affidavit.

All the items contained in said bill are correct, and were actually and in fact furnished and delivered in and towards the construction of said court house, were necessary for and were applied to the use of said court house; and the prices charged in said bill therefor are just and reasonable, and the prices to be paid therefor by the terms of the contract.

Said bill was duly verified, and certified by the superintendent of the construction of said court house to be just and correct, and according to the contract.

The said bill, with the said verifications and certificate, was rendered to the board of supervisors, and subsequently duly audited and allowed by said board at a meeting held on or about July 5,1869. The action of the board of supervisors was subsequently approved by the mayor of the city of Hew York, as appears by the certificate of the clerk of the board of supervisors, a copy of which is annexed to the affidavit.

The said bill was subsequently examined by James Watson, then county auditor, and found correct, as appears. by his indorsment on the bill on file in the office of the comptroller, a copy of which indorsement is annexed to the affidavit; thereupon payment of said bill was demanded of the comptroller, and on December 6, .1869, the sum of thirty-two thousand seven hundred and ninety-nine dollars and fifty-nine cents was paid on account of said bill to the firm of J. B. & W. W. Cornell by a warrant on the county treasurer, drawn by the Hon. R. B. Connolly, comptroller, and duly signed and countersigned, as provided by law.

When such payment was made, there was due and owing upon said bill sixty-five thousand five hundred and ninety-nine dollars and eighteen cents, with interest thereon from July 5, 1869, to December 6,1869, amounting to one thousand nine hundred and twenty-five dollars and eighty-nine cents, making in the aggregate sixty-seven thousand five hundred and twenty-five dollars and seven cents from which, deducting the payment of thirty-two thousand seven hundred and ninety-nine dollars and fifty-nine cents, there is remaining due and unpaid on account of said bill thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, with interest thereon from December 6, 1869.

By acts of the legislature, passed in 1862,1864,1865, and 1866, more than two million six hundred thousand dollars in the aggregate were directed to be raised by tne board of supervisors of the county of New York, by tax or loan, or by the issue of stocks, to be applied, by or under the provisions of the acts, to the erection and construction of said court house; and the money so raised was directed by the acts to be paid by the comptroller on bills for work and materials furnished to said court house, audited and allowed by the board of supervisors. The sums of money directed by these acts to be raised were raised in the manner directed by the acts, and received by the comptroller for the purpose provided in the acts.

By an act passed April 25, 1867, the said board of supervisors were directed to raise the further sum of eight hundred thousand dollars for the completion of said court house, which further sum was raised by tax and received by the comptroller for the purpose provided in the act.

By an act passed June 3, 1868, the comptroller of the city of New York was authorized to raise, on the stock of said county, the further sum of eight hundred thousand dollars for the completion, fitting up, and furnishing of the said court house, which further sum of eight hundred thousand dollars was raised and received by the comptroller for the purpose mentioned in the act, and was by the act to be paid by the comp-roller on bills audited and allowed by the board of supervisors. By an act passed May 12, 1869, the said comptroller was directed to raise on the stocks of the said county the further sum of six hundred thousand dollars for the completion, fitting up, and famishing the said court house; and by said act it was provided that the money so raised should be paid by the comp-¿roller on bills audited and allowed by the board of supervisors ; and the said further sum of six hundred thousand dolíais was raised and received by the comptroller for the purpose in the act mentioned.

The relator and affiant is informed and believes that at the time of the auditing and allowance of the said bill by the' board of supervisors as aforesaid on July 5, 1869, and at the time of the demand for the payment thereof made on the comptroller as aforesaid, there was remaining in the hands of said comptroller of the said above-mentioned appropriations, or some of them, applicable to the payment of said bill, a sum of money far more than sufficient to pay the said bill in full, and that it thereupon became, and has ever since been, and is now the duty of the said comptroller to pay the said bill in full.

After the said payment on account of said bill on December 6, the relator and affiant called at various times on the comptroller, with reference to the payment of the balance due on the bill, and the comptroller on each of the occasions promised that he would pay the balance.

By an act of the legislature, passed April 26, 1870, the mayor of the city of New York was authorized to appoint four commissioners, and by such act it was provided that upon the appointment of said commissioners, all powers of the board of supervisors over the erection of said court house should cease ; and by the said act, the said commissioners were given the power to superintend and complete said court house for a sum not exceeding six hundred thousand dollars, which amount the comptroller was authorized and directed to raise on stock of said county of New York.

After the passage of said act in the year 1870, the said mayor appointed Thomas Coman, Michael Norton, James H. Ingersoll, and John J. Walsh such commissioners, who accepted such appointment, and have ever since been and are such commissioners ; and the relator and affiant is advised and believes that such commissioners, by virtue of said act and appointment, became and are the successors to the board of supervisors with reference to the construction and completion of said court house, and all contracts made therefor and work done thereon.

The said sum of six hundred thousand dollars was raised as directed by the said act, and was received by the comptroller for the purposes mentioned in the act. The relator and affiant called upon the said comptroller after the passage of said act, and in the spring of 1870, and the comptroller told him that the balance due on said bill should be paid by him (the comptroller) out of said last-mentioned appropriation; and afterwards, in the summer of 1870, the relator and affiant called on the comptroller, and was then told by the comptroller that as soon as W. Watson, the chief clerk of the comptroller, got to town, which would be in about ten days, the balance due on said bill would be paid, either with bonds or in cash.

The relator and affiant (and here I quote the words of the affidavit) is informed and believes, that large amounts of the last-mentioned appropriation have been paid by the said comptroller on alleged claims for work done and materials furnished to the said board of supervisors, upon or with reference to the said court house, prior to the passage of the said act of April 26, 1870, and prior to the appointment of the said commissioners, but subsequent to the auditing and allowance of the said bill of J. B. & W. W. Cornell on July 5, 1869, and that said payments, or some of them, were made by the said comptroller without the proper vouchers therefor, and in violation of law; that among-such payments are the following payments (as appears-by entries in the books of the said comptroller), which payments were made to one Andrew J. Garvey, at the following dates, alleged in said entries to have been done at the following times:

Date of Payment. Character of Work. Date on which Amount
1870. Work was Done. Paid.
May 6..Paid for plastering in court house................Dec. 4,1869.. $46,025.67
May 14.. Paid for plastering and mason work in court house. Dec. 2,1869.. 45,355.92
May 14. .Paid for painting and decorating in court house . Dec. 22,1869.. 44,255.85
May 21..Paid for painting and decorating in court house . Dec. 21, 1869.. 44,094.91
May 21..Paid for painting and decorating in court house . Dec. 23, 1869.. 44,281.16
May 21.. Paid for plastering and mason work in court house. Dec. 11,1869.. 45,444.46
May 27. .Paid for materials and labor in court house......Dec. 24,1869.. 40,870.45
May 28..Paid for materials and labor in court house......Dec. 24,1869.. 43,390.81
May 80. .Paid for materials and labor in court house......Dec. 24,1869.. 40,895.34
June 3. .Paid for materials and labor in court house......Dec. 24, 1869.. 42,942.16
June 3.. Paid for repairs and materials in county buildings
and offices...............................Nov. 29, 1869.. 41,399.63
June 3. .Paid for repairs and materials in county buildings
and offices...............................Nov. 26, 1869... 41,180.43
June 6. .Paid for labor and materials in court house.....Dec. 16, 1869.. 41,563.42
June 6. .Paid for labor and materials in court house......Dec. 24, 1869.. 40,971.15
June 6. .Paid for labor and materials in court house......Dec. 24, 1869.. 40,652.43
June 6. .Paid for labor and materials in court house......Dec. 24,1869.. 43,774.26

And deponent further shows, on information and belief, that some of said payments were made out of the said last-mentioned appropriation of six hundred thousand dollars, and some of them out of the previous appropriations hereinbefore mentioned, and that, as deponent is informed and believes, the amounts of said payments are very largely in excess of the amounts to which the said Garvey was entitled for the labor and materials furnished by him to said court house, and that bills for the amounts of said payments, or some of them, were not presented, audited, and allowed in the manner required by law, and that said payments, or some of them, were made by the said comptroller without the proper vouchers therefor, and in violation of law.

By an act of the legislature, passed April 19, 1871, there was authorized to be appropriated for the completion of the said court house the sum of seven hundred and fifty thousand dollars, to be expended under the direction' and supervision of the said commissioners, and it was further provided that the comptroller should, on requisition of the said commissioners, pay-over to their credit such sum or sums as they may from time to time deem necessary for such purpose, and the said comptroller was authorized by said act to raise said amount on the stock of the county of New York.

The relator and affiant is informed and believes, since the passage of said act, the said comptroller has raised said amount as in and by said act directed, and has received the said amount for the purpose mentioned in the act, and that all of said amount remains in the hands of the comptroller unexpended, except about the sum of two hundred thousand dollars, which has been placed to the credit of the said commissioners by said comptroller, and the. whole of which last-mentioned sum of two hundred thousand dollars, or a large part thereof, remains in the hands of said commissioners unexpended.

On July 11, 1871, the relator and affiant caused to be served upon the said commissioners a demand duly verified (a copy of which is annexed to the affidavit) to the effect that the said commissioners make a requisition upon the comptroller for the payment by the comptroller to the relator and affiant, as the surviving partner of the firm of J. B. & W. W. Cornell, of the balance of the bill allowed and audited, as aforesaid, on July 5, 1869. From the copy of the demand on the commissioners, annexed to the affidavit of the relator and his affidavit, it appears that such demand was in the form of a notice in writing addressed to the said commissioners, individually by name as such commissioners ; that annexed to said notice and referred to therein, as thus annexed, was a copy of the said bill for work, and so audited and allowed by the board of supervisors on July 5, 1869, and that said notice or demand was to the effect that the original of said bill was on file in the office of the comptroller ; that said' bill had been audited and allowed by the board of supervisors as aforesaid ; that the action of the board of supervisors had been approved subsequently by the Hon. A. Oakey Hall, the mayor of the city of Hew York, as appeared from the certificate of the clerk of the board of supervisors ; that the bill was subsequently examined by James Watson, the county auditor, and found correct, as appeared by his indorsement on the original bill in the office of the comptroller; that on December 6, 1869, thirty-two thousand seven hundred and ninety-nine dollars and fifty-nine cents had been paid by the comptroller on account of the bill; that there was due and owing upon the bill at the time of said payment, sixty-five thousand five hundred and ninety-nine dollars and eighteen cents, with interest thereon to December 6, 1869, amounting to one thousand nine hundred and twenty-five dollars and seven' cents, making an aggregate sum of sixty-seven thousand five hundred and twenty-five dollars and seven cents; that after deducting from said aggregate sum the payment of thirty-two thousand seven hundred and ninety-nine dollars and fifty-nine cents, there remained due and unpaid on account of said bill the sum of thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents; that the firm of J. B. & W. W. Cornell, at the time the contract for the work, labor, and materials mentioned in the bill was executed, and the work, labor, and materials performed and furnished, was composed of John B. and William W. Cornell; that the said William W. Cornell died on March 17, 1870, find that thereupon the said John B. Cornell (the relator and affiant) remained the surviving partner of the firm, and that therefore the said John B„ Cornell, as such‘surviving partner, demanded of the said commissioners that they, as such commissioners, make a requisition on the comptroller of the city and county of Hew York for the payment by the comptroller to the said John B. Cornell of the sum of thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, with interest thereon from December 6, 1869.

It further appears, from the affidavit of the relator and affiant, that - copies of all the papers referred to in the said demand or notice were annexed to said demand or notice. Subsequently the relator and affiant, on learning that two hundred thousand dollars or thereabout had been placed to the credit of the commissioners on or about July 18, 1871, caused a further demand to be served on the commissioners (a copy of which is annexed to the affidavit), that they pay to the relator and affiant the amount of the balance of the said bill audited and allowed as aforesaid, on July 5, 1869. On July 20, 1871, the relator and affiant caused to be served upon the comptroller a demand (a copy of which is annexed to the affidavit) to the effect that the comptroller pay to the relator and affiant, as surviving partner of the firm of J. B. & W. W. Cornell, the balance of said bill as audited.

None of the said demands have been complied with, and no part of the balance of said bill has been paid, but the whole amount thereof remains due and owing to the relator and affiant as such surviving partner, as aforesaid, to wit: the sum of thirty-four thousand seven hundred and twenty-five dollars and forty-eight cents, with interest thereon from December 6,1869.

In answer to this case made by the affidavit of the relator, Mr. O’ Grorman, corporation counsel, read two affidavits of the comptroller, one purporting to have been verified on August 14, 1871, and the other purporting to have been verified on August 16, 1871.

In and by the first, the comptroller says in "substance and effect, that he lias no funds legally applicable to the payment of the claim of the relator, and in words says further, that all the moneys authorized by the legislature to be raised from time to time, for the purpose of said new county court house, have been expended in accordance with the statute made therein, save as hereinafter mentioned that the only funds remaining in the county treasury, legally applicable to the payment of the liabilities incurred in the erection of said court house, are those authorized and directed to be raised for that purpose by the legislature of 1871; and that deponent further avers that no payments for or on account of said court house have been- made by him, unless in accordance with law, as he is advised.

In and by the other affidavit of the comptroller, purporting to have been verified on August 16, 1871, the comptroller says in words, that there is no money in the city or county treasury of New York, applicable to, or appropriated for, the payment of the claims of the relator herein, or for the payment of any other claim or claims for work done, or materials furnished upon or in the construction of the new county court house therein ; and by Laws of 1871, cli. 583, § 11, the deponent is authorized to issue stock of the value or amount of seven hundred and fifty thousand dollars for the completion of the said court house; that he has not issued, or caused to be issued, the said stock, or any part thereof; that all sums of money heretofore issued, or appropriated for the construction of said court house are and have been expended.

In answer to the case made by the relator’s affidavit, Mr. Ambrose Monell, for the commissioners, reads two affidavits, one of Thomas Coman, one of the respondents and commissioners, purporting to have been verified on August 15, 1871, to the effect that, since the appointment of the said commissioners, the relator had never presented the bill referred to in his affidavit to the said commissioners for audit, and that the same had not been approved and audited by the commissioners, and stating further in words that he is informed and believes that the said bill of. the relator is grossly extravagant, both as to the amount of materials alleged to have been furnished, and the price charged therefor, and in deponent’s judgment it is highly important that the said bill should be presented to the said commissioners for audit before being paid.

The other affidavit, read by Mr. Monell for the commissioners, by James H. Ingersoll, another of the commissioners and respondents, purporting to have been verified August 15, 1871, states that no part of the two hundred thousand dollars stated in the affidavit of the relator to have been received by the commissioners is remaining in their hands, but the whole of said two hundred thousand dollars had been expended by said commissioners in the purchase of materials and in payment for work done on said court house since their appointment as commissioners thereof.

Having- stated the case made by the papers on both sides, and the only papers before me on this application (three several motions on three several notices on one and the same affidavit having been heard together, and treated as one motion), I will briefly state my conclusions :

1. The bill of the relator having been certified and verified by the superintendent of the court house, and having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and certified to be correct by Watson, the county auditor, and paid in part by the comptroller, and the relator swearing positively that all the items in it are correct, and were actually furnished and delivered under and in accordance with the contract, and that the prices charged are the prices to be paid therefor by the contract—I do not think that the general allegation on information and belief in the affidavit of Mr. Coman, one of the respondents, and one of the commissioners, that the bill is grossly extravagant, would justify me in entertaining a doubt that the bill was and is honest, and just and correct, and that the balance due on it, with interest on such balance from the time of the payment on account thereof by the comptroller, ought to be paid by some one or from some source.

2. Considering that the very general allegations of the relator in his affidavit, to the effect that payments had been made by the comptroller out of the six hundred thousand dollars raised under the act of April 26, 1870, without proper vouchers, and in violation of law, and that certain specified payments had been made to Garvey, out of said six hundred thousand dollars, and out of previous appropriations, largely in excess of what Garvey was entitled to, and that some of said payments to Garvey were made without the proper vouchers, and in violation of law, are made on information and belief merely; and considering that the comptroller by his affidavit, purporting to have been verified on August 14, 1871, swears positively to the effect that he has no funds legally applicable to the payment of the relator’s claims, and that all the moneys which had been authorized to be raised for the new county court house had been expended “in accordance with the statutes made therein, save only funds remaining in the county treasury,” authorized and directed to be raised by the legislature of 1871, and that no payment for or on account of said court house had been made by him, unless in accordance with law, as he is adyised ;—I do not think that I.can or ought to issue a mandamus commanding the comptroller to pay the relator’s claim generally, or on the theory that he has funds applicable to the payment of the relator’s claims raised under or appropriated by any act or acts of the legislature, passed prior to the act of April 19, 1871 {Laws of 1871, ch. 583).

3. In view of the positive affidavit of the respondent and commissioner Ingersoll, to the effect that, all of the two hundred thousand dollars, stated in the affidavit of the relator to have been paid to the commissioners, or passed to their credit by the comptroller, had been expended, I think I cannot and ought not to issue a mandamus to the commissioners, commanding them to pay the relator’s claim out of the said two hundred thousand dollars.

4. The relator in his affidavit says, on information and belief, that two hundred thousand dollars, directed to be raised for the court house by the act of 1871, had been paid by the comptroller to the commissioners. Commissioner and respondent Ingersoll admits by his affidavit that the commissioners have received the two hundred thousand dollars from the comptroller, and says that they have expended the whole of it. The comptroller says in one of his affidavits (the last) that he has not issued or caused to be issued the seven hundred and fifty thousand dollars of stock, authorized to be issued by the act of 1871. He does not deny that he has paid to or placed to the credit of the commissioners the two hundred thousand dollars. I must assume that the comptroller advanced from some fund, from some source, the two hundred thousand dollars, in anticipation of issue of stock under the act of 1871. By section 7 (not 11) of the act of 1871, seven hundred and fifty thousand dollars is authorized to be appropriated, to be expended under the direction and supervision of the commissioners for the completion of the court house, and the same section directs the comptroller, on requisition of the commissioners, to pay over to their credit such sum or sums as they may from time to time deem necessary for said purposes, and by the same section the comptroller is authorized and directed to raise said amount (seven hundred and fifty thousand dollars) on the stock of the county of Hew York, to be of the usual form, and payable ■within twenty-five years from its issue.

In view of my conclusions on other points of the case, made by the papers, the only remaining question is, ought the court by mandamus to direct the comptroller to raise the seven hundred and fifty thousand dollars which he is authorized and directed to raise in ' or by section 7 of the act of 1871, in the manner therein directed and authorized, or sufficient of that sum or amount to pay the relator’s claim, and, when raised, either to pay the claim himself, or to pay-oyer to the commissioners on their requisition, to be applied to the payment of the claim by them, an amount or sum sufficient to pay it; and ought the commissioners, by. the mandamus, to be directed to make-their requisition on the comptroller to pay the claim, or for the comptroller to pay over to them an amount or sum sufficient to satisfy the claim %

I have carefully considered the elaborate and able brief of Mr. O’Gforman, mainly on this point (and I really think it may be considered as really the only question on the case- made by the papers), and without pretending that the question is entirely free from doubt, yet I have come to the conclusion that it is the duty of the court, on the case made by the papers, to try to secure by mandamus the payment of the relator’s claim out of the seven hundred and fifty thousand dollars authorized and directed to be raised in and by section 7 of the act of 1871, and that on the settlement of the order for a mandamus for such purpose, and of the form of the writ, the order and writ should be so worded as most likely and properly to secure such a result.

I think that so much of the seven hundred and fifty thousand dollars as shall have been used in paying the relator’s claim may fairly have been said to have been expended for or in the completion of the court house. ■ I cannot believe that the legislature intended that a building for the administration of justice should be completed, or considered as completed, until the honest and just debts incurred in the erection and completion had been paid or provided for.

Without ever adverting to many of the considerations which have led me, under the circumstances of the case, to put a construction on section 7 of the act of 1871, which will permit a mandamus to issue in the best form to secure payment of the relator’s claim out of the seven hundred and fifty thousand dollars authorized and directed to be raised by the comptroller in and by that section, I will say that the controlling consideration has been that I cannot see any grounds for doubting that the claim is honest, and just, and correct; and that I cannot see that the relator has any remedy by action against .the board of supervisors, or city corporation, or any body, or person or persons.

I see no way in which the relator can enforce payment except by mandamus from or out of the seven hundred and fifty thousand dollars authorized and directed to be raised by section 7 of the act of 1871. The biR of the relator having been audited and allowed by the board of supervisors, and approved by the mayor, and audited and pronounced correct by the auditor, and paid in part by the comptroller, I do not think the relator was called upon, or bound to present it, or the balance due on .it, to the commissioners for a réauditing by them.

Let the form of the order, and of the mandamus to be made and issued according to the opinion, be drawn by the counsel for the relator, or one of them, and settled on notice. 
      Note.—An order for the issuing of a writ of mandamus to the commissioners to compel them to make their requisition on the comptroller, was accordingly issued in the following form:
     