
    The People ex rel. The Commissioners for the erection of a public market, &c. vs. The Common Council of the city of New York.
    The legislature having authorized and directed the mayor, aldermen and commonalty of the city of New York to create a public fund or stock, for the erection of a public market, a mandamus will lie to compel the common council to issue the stock; the common council constituting the only agency or instrument by which the behest of the legislature can be obeyed; and a mandamus being the only possible method by which that body can be compelled to act.
    APPEAL from an order made at a special term granting a peremptory writ of mandamus, commanding the common council of the city of New York to pass an ordinance, as required by the act of March 5, 1865, (Laws of 1865, p. 211,) creating a public fund or stock, to be denominated “ Market Stock,” for the amount of $75,000, for the erection of a public market, on certain property in the eigtheenth ward, purchased of J. C. Lowber.
    
      Richard O’Gorman and Wm. G. Trull, for the common council.
    
      Glephas Brainard and James S. Stearns, for the relators.
   Clerke, J.

On the argument the only points taken by the counsel for the corporation were, first, that no action upon the part of the common council was necessary to the creation of the stock in question; and, second, that the common council owe no duty to the relators.

I. As to the first point: The act (Laws of New York for 1865, p. 211, § 5,) directs and authorizes the mayor, aldermen and commonalty of the city of New York to create a public fund or stock, to be denominated “Market Stock,” for the amount of $75,000. Section 6 directs the comptroller of the city to prepare and issue said stock within thirty days after being required in writing so to do by the commissioners. What stock P The said stock; that is, the stock which in the preceding section the mayor, alderrnen and commonalty of the city of Hew York are directed to create. The comptroller evidently can prepare and issue no other stock than that mentioned in the 5th section, and any action relating to any other would be null and void, and of course the stock would be utterly worthless.

II. As to the point that the common council owe no duty to the relators: The language, no doubt, of the act, as we have seen, is: “ The mayor, aldermen and commonalty of the city of Hew York are hereby authorized and directed to create a public fund or stock,” &c. The words common council do not appear in the act. The common council, however, constitute the only agency or instrument by which this behest of the supreme legislature can be obeyed, The mayor, aldermen and commonalty can act in no other possible way in the premises than by and through the common council. They can not compel the latter to do so. The mayor, aider-men and citizens generally, who, I suppose, constitute the commonalty, may daily raise their voices in the loudest tones to the honorable the common council, commanding them to create this stock, and the common council could laugh at them as they have laughed at the commissioners. The only possible method by which the common council can be compelled to do so is by application to this court, which alone can issue a mandamus capable of being enforced. This point has been frequently determined by authority. In the language of Bronson, J. in McCullough v. The Mayor of Brooklyn, (23 Wend. 458,) the writ lies against the body upon whom the duty of putting the necessary machinery in motion is imposed. In The People v. The Common Council of Syracuse, (20 How. Pr. R. 491,) the act of opening the streets was the act of the corporation, but the common council had to set the machinery in motion, and accordingly the writ was issued against them. The obligation was mandatory on them, They have no discretion in the matter as in the ordinary cases of municipal legislation; they must obey the supreme legislation. (See also the Commonwealth v. Select and Common Council of Pittsburgh, 34 Penn. S. R. 406 ; Archbold’s Practice of the Crown Office, 239-250, and Tapping on Mandamus, 94, in both of which the early English cases are collected.')

The order should be affirmed, with costs.

Barnard, P. J. concurred.

Ingraham, J.

I concur in the propriety of granting this writ, were it not directed to the wrong parties.

The statute imposes the duty of creating this stock on the mayor, aldermen and commonalty of the city of New York. This is the corporate title of the municipal' corporation. They act by the common council and the mayor. „No action of the one without the consent of the other can enact the necessary laws for creating the jDublic stock, except in case of a veto from the mayor. The mandamus directs the common council to enact the necessary law to create the stock. This they can not do without the mayor, and they are required to do what is not in their power.

I have no objection to a modification of the command in 'the writ, so as to require them to prepare and pass in their separate boards the necessary ordinance for that purpose, and on complying with that direction their duty in the matter is discharged.

In The People v. Common Council of Brooklyn, (22 Barb. 404,) the writ was so directed and allowed, but in that case the statute directed the common council of Brooklyn to do the act. So in the case of The People v. Common Council of Syracuse, (20 How. Pr. R. 491,) the statute directed the common council, after the. award, to pay the money. In McCullough v. The Mayor, &c. of Brooklyn, (23 Wend. 458,) Bronson, J. said the proper remedy was a mandamus against the corporation to exercise their functions according to law.

[New York General Term,

January 2, 1866.

Two things are necessary—the action of the common council and the approval of the mayor—before the law can be enacted.

If the writ had been directed to the corporation, it would have been their duty to pass the law. As it is, the remedy at best will be imperfect.

Order affirmed.

Geo. G. Barnard, Clerke and Ingraham, Justices.]  