
    The People of the State of New York ex rel. Security Trust Company of Rochester, Respondent, v. The Treasurer of the County of Monroe, Appellant.
    Fourth Department,
    July 9, 1907.
    Mandamus — sewer assessment in. county.of Monroe — county treasurer not required to pay out funds by mandamus.
    Mandamus will not lie to establish rights or determine legal controversies, but solely to .compel the doing of acts which it is the clear duty of the ¡respondent to" do-without any command, whatsoever. ’
    As the statutes relating to the construction of a sewer in the. tenth, fifteenth and ■ twentieth wards of the city of Rochester and town of Gates require that . . moneys received from assessments be turned over to the county treasurer, who . shall file accounts thereof in the County Court for audit in that court, a holder of bonds issued to cover the expenses of construction is not entitled to man- • d'amus requiring the county treasurer to pay' the bonds. ' .,
    As the treasurer is required to submit to an audit in the County Court, he should not he required to pay out the funds except upon application to the County. Couit and after order by that court that the payment be made.
    Appeal by the defendant, The Treasurer, of the" County of Mpn.roe, from ah order' of the Supreme Court,,made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 27th day of May, 1907, granting the relator’s motion for a peremptory writ of mandamus. " ■ ■
    
      John A. Barhite, for the appellant.
    
      Edwin A. Nash and Harris, Havens, Beach & Harris, for the respondent.
   Williams, J.:

The order should be reversed,' with costs, and the application denied, with fifty dollars costs.

The. serious question involved in this ’ appeal ■ is whether peremptory mandamus is the appropriate or a proper remedy. The question does not involve the claims of. respondent alone. There are many others of a like nature, and the precedent here established is likely to be followed in all other cases of a like nature.

The rule of law is that mandamus. may not be used to- establish rights or to determine legal controversies, but solely to compel the doing of acts which it was the clear duty of a party to do without any commands whatever. (People ex. rel. Harris v. Commissioners, 149 N. Y. 26, 30; Brownsville v. Loague, 129 U. S. 493.)

So that the question is whether it was the legal duty of the county treasurer,' when- the trust company demanded partial payment of its. claim, to make such payment. We need to understand the facts and to consider some acts of the Legislature in order to determine this question.

Chapter 603 of the Laws of 1892 authorized the construction of a sewer in the tenth, .fifteenth and twentieth wards of the city of Rochester and in the town of Gates, Monroe county. Section 4 of this act (as amd. by Laws of 1895, chap. 438) provided for the appointment of three commissioners to construct the sewer. They were authorized to appoint one of their number a treasurer. And it was provided: The treasurer • shall, during the continuance of. said commission, collect and be the custodian of all moneys to be collected or received by the commissioners, under the .provisions of this act, and he shall ,pay out the moneys so received only upon the orders of the commissioners, - signed by at least two of their number.” Sections 7 and 12 of the act (§ 7, as amd. by Laws of 1895, chap. 438) provided for the apportionment of the expense of constructing the sewer among property owners, in the form of assessments, and for the collection of the,same. Sections 11 and 13 of the act (§ 11, as amd. by Laws of 1895, chap. 438) authorized the issue by the commissioners of six per cent certificates of indebtedness, in such form as they deemed proper, in payment of expenses in the construction of the sewer. Section 20 of the act (as amd. by Laws of 1895, chap. 438) provided that upon the completion of the sewer the commissioners should file with "the treasurer of the-city of .Rochester their-records, books-of account and all papers relating thereto, and all moneys on hand, assessment roll, uncollected assessments and' papers " connected therewith, and the city treasurer should, from that time, “ discharge all duties arid possess .all powers •imposed upon or vested in the treasurer of said commission by virtue. of the provisions of this act (Laws of 1895, chap. 438) and of chapter six hundred and three of the laws of - eighteen hundred and riinetytwo.” By section 1 of chapter 315 of the Laws of 1898 it ivas provided that the commissioners, having" completed the sewer, should within twenty days transmit to the city treasurer all their records and proceedings, with the assessment roll - made by them, and all moneys collected thereon, and" -all other funds in-. their hands, and thereupon the powers and duties of the commissioners should cease, except as thereinafter provided (for the making of new assessments, under some circumstarices). Section 2 of that act. provided .that the city treasurer was empowered to issue and sell-four and one-half per cent assessment bonds to the amount of $400,000, and with the. procéeds thereof, .and ariy available hioneys in' his hands as successor in Office to the commissioners, he was -directed to redeem and cancel the certificates of indebtedness or assessment bonds theretofore-issued by the commissioners^ the -new bonds to have: the same force and effect as the old ones issued by the commissioners. Section 2 of chapter 620 of the Laws of 1904, provided that in June of that year the city treasurer should deliver to the county treasurer of Monroe county all assessment rolls and other property received by him- from said commissioners, and that he should pay to such county treasurer all money's remaining in his hands arising- from the collection of assessments for the sewer. That act-provided for the collection of ■unpaid assessments and the payment thereof to the county treasurer. Section 4 of that act-provided that “the moneys received by the treasurer’of Monroe county 'shall be "deemed, as to the custody of the same, as" funds of the bounty of Monroe, and shall be known, as-the west.side sewer fund,” It provides for the deposit" of the same, and -that the- treasurer “ shall at least once in six months' file a statement of said fund with the. Monroe County Court; ” that the court should give notice of the time" and place, when and where the said accounts would be audited, and any person interested in the fund should have the right to be heard as to stich audit, and the County Court should have power to audit and allow said accounts after such hearing.

So much for the acts of the Legislature relating to the matter here involved. As to the facts, it'appears that the commissioners' proceeded to construct the sewer and issued certificates of indebtedness or bonds, amounting to $453,500, upon six per cent interest, of which there are now outstanding and unpaid $281,000. Mo four and one-half per cent bonds were issued by the city treasurer under the act of 1898; only the six' per cent certificates of indebtedness or bonds are outstanding.. Many of those issued have been received under the provisions of the acts for assessments upon property owners. . The trust company holds $38,000 of these certificates or bonds. There is in the hands of the county treasurer $89,271.19 of moneys belonging to this fund, and the claim made is that the trust company is entitled to its proportionate share of this money, and the treasurer was bound to pay it on demand without the direction of any court or of the supervisors of the county. Very likely the supervisors would have no control over the fund, because although it is made by statute a county fund, yet the treasurer is required to account for the" same to the County Court, which has the power to audit and allow the account, after hearing all parties interested in the fund. But it seems to us that the treasurer, in view of the requirement of the statute that he submit to the audit of the County Court, and that there is no express.statutory provision for the payment by him of these cei’tificates or bonds, should not be held liable or required to pay out any of this fund in liquidation of this indebtedness, except upon application to the County Court and an order by such court that such payment be made. The court which had the-whole matter of auditing of the accounts of the treasurer relating to the disposition of the fund in its charge would, before making such an order, require proofs insuring safety to be made as to the claim presented, and such notice to other parties interested in the fund as would be required upon the audit subsequently required to be'made by it. We do not think it should be held that the treasurer must, on demand, determine whether the claimant is entitled to be paid a part of the fund and take his chances of the County Court subsequently agreeing that the payment was properly made and allowing the same in his audit. There might be no trouble as to the claim of the trust company, but there, are many other claims, and tile claimants are unknown and uncertain. Is it' quite right that the treasurer should be required to determine, at his peril, the genuineness of all certificates of bonds presented and the ownership thereof, and perhaps other facts involved, and,'in the event of a mistake, be personally liable therefor ? "It seems'to us not, and that the peremptory mandamus in this case was. improperly granted.

All Concurred.

■Order reversed, with costs, and motion denied, with fifty dollars costs. ' ;  