
    (111 App. Div. 924)
    PEOPLE ex rel. UVALDE ASPHALT CO. v. GROUT, Comptroller.
    (Supreme Court, Appellate Division, First Department.
    February 9, 1906.)
    Mandamus — Grounds—Enforcement of Illegal Contract.
    Where paving work to be clone on a street was divided up into several detached pieces, and under several separate orders, without competitive bidding, each order being under $1,000, but aggregating over $1,000, mandamus would not lie to compel the payment of the orders; the contract being apparently illegal, under Greater New York Charter, Laws 1901, p. 186, c. 466, § 419, declaring that, when the several parts of a work shall involve more than $1,000, the work shall be done by contract founded on competitive bidding.
    Mandamus by the people, on the relation of the Uvalde Asphalt Company, to compel Edward M. Grout, as comptroller of the city of New York, to pay an order.
    Motion for the writ denied.
    The following is the opinion of the court at Special Term:
    The writ of mandamus should only issue to compel the payment of money by the city, when the petitioner’s right to the payment is clear and unmistakable, and when there is absolutely no defense against payment. It should not issue where it appears that the contract is illegal upon which payment is sought, or where there is grave reason to question its legality. There the petitioner should be relegated to his ordinary remedy by action. Here there sufficiently appears a clear attempt to evade section 419, of the Greater New York Charter. (Laws 1901, p. 186, c. 466.) The original contract was for the improvement of Surf avenue, from Fifth street to Nineteenth street. Thereafter it was sought to modify the contract by extending the work to be done, so as to include up to Twentieth street. This the law officer of the city advised could not be done, as embracing territory beyond that covered by the original contract and requiring a reletting. A second application met with the same reply. Thereafter, knowing the additional work could not be done without a new contract, the work from Nineteenth to Twentieth streets was divided up into four detached pieces, and under four separate orders, each under $1,000, but aggregating in all $2,349.68. For the payment of one of these orders amounting to $985.50, this writ is sought. If the method followed in the awarding of this work is to be approved as a legal one, section 419 of the charter becomes of no avail, and competitive bidding practically disappears.
    Motion for a writ denied, with costs.
    Argued before O’BRIEN, P. J., and PATTERSON, INGRAHAM, LAUGHEIN, and CLARKE, JJ.
    J. C. Wait, for appellant.
    T. Connoly, for respondent. •
   PER CURIAM.

Order affirmed, with $10 costs and disbursements.  