
    THE PEOPLE ex rel. THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondents, v. THE BOARD OF APPORTIONMENT OF THE CITY AND COUNTY OF NEW YORK, Appellant.
    
      Chapter 583, Lams of 1871—when court will compel the issue of the bonds therein “ provided for—Disputed claim.—how decided.
    
    A peremptory mandamus will not be granted requiring the board of apportionment of the city and county of New York to issue bonds, in pursuance of chapter 583, Laws of 1871, until it is established that a debt is owing to the relator, which may lawfully be paid out of the proceeds to arise upon the sale of such bonds.
    A conceded claim, audited and allowed by the proper authorities, would be sufficient to entitle the relator to require that the fund for its payment should be raised, but a controverted demand can justify no proceeding of that kind. Where disputed matters of fact arise in proceedings by way of mandamus, issues of fact must be formed and tried by a jury, in all cases where the existence of a long account may not require the case to be referred.
    Appeal from an order directing a writ of peremptory mandamus, requiring the board of apportionment of the city and county of New York forthwith to meet, and, by concurrent vote, to authorize the issue of stock of the county of New York, pursuant to the provisions of chapter 583 of the Laws of 1871; and to take such action as will authorize the comptroller of the city of New York to pay to the Tenth National Bank of the city of New York the sum of $242,579.92, with interest thereon from the date of the several advances of the amounts composing said sum, being the claim of the bank for advances made to the commissioners of the new county court-house, prior to the 31st day of December in the year 1871.
    
      John K. Porter and John U. Strahan, for the appellant.
    A motion for a peremptory writ upon the moving and opposing affidavits, is in the nature of a demurrer. It concedes the facts to be as set forth in the opposing affidavits. (People ex rel. Bentley v. Com. of Highways, 6 Wend., 559, and 7 id., 474; Commer. Bank of Albany v. The Canal Com., 10 id., 31; People ex rel. Jennings, v. Seymour, 6 Cowen, 579; Ex parte Rogers, 7 id., 526; 
      Fish v. Weather way, 2 John. Cases, 217; People ex rel. Wiswall v. Judges of Renss. Co., 3 How., 164.) The act is unconstitutional. It embraces more than one subject, viz., liabilities of and claims against the city of New "York, and liabilities of and claims against the county of New York. (People ex rel. Morris v. Edmonds, 15 Barb., 529; People ex rel. Downing v. Stout, 23 id., 338; Baker v. Mayor, 9 Abb., 82; Halstead v. Mayor, 3 N. Y., 436; Gaskin v. Meek, 42 id., 186; People ex rel. Davies v. Com. of Taxes, 47 id., 501; Huber v. The People, 49 id., 132; In re Mayer, 50 id., 504; Sun Mutual Ins. Co. v. The Mayor, 8 id., 241; People ex rel. McConville v. Hills, 35 id., 449; People v. O’Brien, 38 id., 193.)
    
      Henry.E. Davies and Henry H. Anderson, for the respondents.
    Whether a peremptory mandamus will issue in- the first instance, is a matter for the exercise of discretion on the part of the court. (Knox Co. v. Aspinwall, 24 How. (U. S), 376; People ex rel. Hall v. Supervisors, 32 N. Y., 473; Dwarris on Statutes, 712; Rex & Reg. v. Barlow, 2 Salkeld, 609; City of N. Y. v. Furze, 3 Hill, 612; Newburgh T. Co. v. Miller, 5 Johns. Ch., 113; Minor v. Mechanics’ Bank, 1 Peters, 64.)
   Daniels, J.:

The object of the writ ordered to be issued, was to provide a fund for the payment of a claim made by the relator for moneys alleged to have been advanced to the commissioners of the new county court-house, during the continuance of a bank account extending from the 29th day of April to and including the 2d day. of September, in the year 1871.

In deciding the application for the writ, the learned justice by whom it was heard and disposed of, did not determine nor pass upon the question of the liability to pay the debt claimed to exist in favor of the relator. But the writ was directed to be issued for the purpose of creating a fund from which the debt could be lawfully paid, in case its existence should afterward be properly established. It was contingent in its nature, rendering the use of the fund dependent upon the circumstance of the relator’s, ability to show that a just debt was due to it which should be paid out of such fund.

It .has been quite common to require municipal bodies to raise money by taxation, for the payment of debts existing against them. But legal proceedings for that purpose have neither been authorized nor maintained until after the demands to be provided for have been audited and allowed, or established in some other legal manner. Until that is first done, no necessity can exist for the creation of any fund for their payment; and the claimant can have no such right to it as will authorize him to require the authorities to raise it. The proceeding taken in this case forms no exception to this principle. For, if the relator has no debt which can lawfully be paid out of the fund proposed to be created, it manifestly has no right to require the authorities proceeded against to take any measures for the purpose of raising it. A mere possibility that it may be able to establish the existence of a demand of that nature, cannot be sufficient for that purpose. If it should be, then it is very clear that the fiscal authorities may be required and compelled to create funds, by both taxation and loans, which may never be required for expenditure. That is an obligation which should be very clearly shown to be created, before courts of justice.can properly be justified in maintaining it; and the act authorizing the fund to be created, in this instance, has not done that. It has simply provided that certain specified debts shall be paid, and authorized a fund to be created by a sale of bonds to an amount not exceeding $8,500,000 for their payment.

The object of the law, very plainly, was to provide the means for paying certain debts, specially described; and, in addition to that, to pay from the fund all moneys advanced by banks, insurance and trust companies prior to the 31st of December, 1871, to or for the use of any of the departments or commissions of the city or county of New York;” and to provide for such payments, it was provided that bonds should be issued and sold. But before that can be intelligently done, the debts themselves must be known; for no greater fund was authorized than should b'e required for their payment, and that can only be ascertained when the debts themselves have been established. As fast as that may be done, the fund can consistently and properly be created, until a sufficient amount has been realized to pay all the debts provided for by the act. But the authorities, to whom the duty of raising the fund has been committed, cannot be required to proceed more rapidly than that; if they did, they might create a fund not required for the uses specified by the law, and that, no authority has been provided for doing. In fact, it would involve an excess of authority beyond that provided ; for, without a debt being due to the relator of the description given in the law, the board can have no right to provide for the issuing of bonds on its account, and the relator, itself, no interest in the act being done. To maintain its proceeding and set the board in motion, the fact must first be made to appear that a debt is owing to the relator, which it may lawfully require to be paid out of the proceeds of the bonds to be sold; and that must be done in the manner provided for the purpose of trying and settling disputed controversies of fact in legal actions.

A conceded claim, audited and allowed by the proper authorities, would be sufficient to entitle the relator to require that the fund for its payment should be raised. But a controverted demand can justify no proceeding of that kind ; and, as the validity of the relator’s demand has been denied, the issue existing concerning it, must first be settled in its favor before it can insist that measures shall be taken to provide means for its payment.

The application made in this case was for a peremptory writ of mandamus, directing the bonds to be issued for the purpose of raising those means; but as no debt appeared to exist, to be paid by them, the application could not properly be allowed to succeed. To warrant its success the debt should have previously been established. That could not be done in the hearing and determination of the motion made, for the law lias prescribed an entirely different course for the settlement of disputed matters of fact, in proceedings by way of mandamus; and that is, by forming what are denominated issues of fact, and trying the same by jury, in all cases where the existence of a long account may not require the case to be referred. That mode of proceeding has been declared by statute; and since then, it has been sanctioned by a constitutional provision,

A controversy of that character appeared, concerning the relator’s demand, from the papers produced upon the hearing of the application ; for, although the affidavits produced in its own behalf, tended decidedly to show the existence of a debt the statute provided should be paid out of the proceeds of the bonds, they were as positively denied by those on which the motion was resisted Norton positively stated that the moneys, claimed to have been advanced by the relator to the court-house commissioners, were advanced to Ingersol, and not to them, and that he was never authorized to borrow the money on their account or for their use. He stated further, that Palmer, the president of the bank, informed him that the advances were to Ingersol, and be wished the certificate, which they finally signed, as an acknowledgment that they were made to the commissioners. Taintor, who swears that he endeavored to discover, by an investigation, whether the relator’s claim was just, states that he was frustrated in his efforts to do so by the relator’s officers, so far as the examination of the books of the bank were required for the purpose. He was in the finance department, and directed to examine the facts upon which the relator founded its claim; and, after doing so as far as he was permitted to, he reached the conclusion, positively asserted in the affidavit made by him, and that was, as he expressed it, That the sums set forth in the affidavit of Mr. Palmer, the president of the bank, alleged to have been advanced to the county, or to the courthouse commissioners, were not advanced or paid by said bank to said county, or to said court-house commissioners, but were paid to said Ingersol, a director of said bank, at the request or on the instigation of himself and his codirectors, Connolly, Tweed and others, well knowing that the same were not to be used for the completion of said court-house; and there is not now, nor has there at any time, been justly due and owing to said bank, by said county, on account of said alleged advances, the sum of $256,415.58, or any part thereof.”

In addition to that, the comptroller swore that he had made an investigation concerning certain claims, and, “ from the examination, so made, I was satisfied that no valid claim exists on the part of the relator against the county.”

The persons making these affidavits may, in • the end, prove to be mistaken in their conclusions and statements concerning thfe. claim made by the relator; but if they are, that cannot be lawfully determined in this proceeding. For that investigation another mode has been prescribed, which this court is not at liberty to disregard. The papers produced upon the hearing, were evidently prepared under the conviction that the success of the application depended upon the relator’s ability to establish the fact that a debt was due to it, of the description which the act provided should be paid. That it has failed to do, for, by the affidavits controverting it, the existence of it is the plain subject of a well founded controversy. That must be judicially settled before it can be consistently concluded that the relator has such a demand as will entitle it to have bonds ordered to be issued and sold for the purpose of providing a fund for its payment. It has not been done, and it cannot be done upon the affidavits and papers before this court.

The order appealed from should be reversed with ten dollars costs, besides disbursements; and an order should be entered, denying the motion made for a writ of mandamus, with ten dollars costs of opposing it.

■ Davis, P. J., concurred.

Ordered accordingly. 
      
      Vol. 1, Laws of 1871, 28, 29, § 2.
     
      
      3 R. S. (5th ed.), 898, § 16.
     
      
       Art. 1, § 3, Const. 1846; see, also, cases cited in People v. Green, decided at this term. [See Post, p. 308.—Rep.]
     