
    
      Ex parte, Holmes Hutchinson vs. The Commissioners of the Canal Fund.
    A mandamus does not lie to the commisioners of the coned fund, to allow a claim for costs expended by a canal engineer, in a suit prosecuted against him for alleged negligence in the discharge of his duty, in which suit the plaintiffs suffered a non pros. A discretion is entrusted to the commissioners, with the exercise of which this court will not interfere.
    The relator was sued in his character of an engineer on the state canals, by S. & L. W. Holmes, for alleged negligence on his part in the enlargement of the Erie canal in the city of Utica, by means whereof the water from the canal forced its way into the cellar of a store occupied by the plaintiffs and damaged their property. The plaintiffs suffered judgment, as in case of nonsuit for not proceeding to trial, to be entered against them; and the relator not being able to collect the costs of the defence by process of execution against the plaintiffs, presented a claim to the commissioners of the canal fund for the allowance of the sum of $83.95^ [ *693 ] *the amount of such costs paid by him to his attorney, and that the same be paid to him from the canal fund, in pursuance of the provisions of the statute, 1 R. S. 181, § 14, &c. 2d ed. The commissioners refused to allow the claim, and the relator applied for a manda-, mus.
    
   By the Court,

Nelson, C. J.

It is sufficient to say that the statute vests the commissioners with a discretionary poioer to allow the claim, or such part thereof as they shall deem to be reasonable," if they shall be satisfied that the officers making such claim have been subjected to costs, &c., while’ acting in good faith in the discharge of their duty. Having a right thus to exercise a discretion in the matter, the remedy by mandamus is inappropriate. The legislature alone can revise the decision of the commissioners.

Motion denied.  