
    THE PEOPLE against BRENNAN.
    
      Supreme Court, First District;
    
    
      Special Term, November, 1865.
    Mandamus.—Payment of Salaries Pending Contest as to Title to Office.
    In an action to try the title to an office, the Supreme Court at special and general te.rms, having decided in favor of one party;—Held, that the fiscal officer of the municipal corporation was authorized in paying to the deputy of such party the moneys provided by law for the salary of such deputy.
    Upon the Court of last resort reversing such decision and declaring the adverse party to be entitled, a mandamus will not lie at the suit of the deputy of the latter to compel payment, again, of the salary for the same period, to him, in the absence of any appropriation for the purpose.
    Application for a mandamus.
    Pending the controversy for the office of Tax Commissioners for the City and Cdunty of Hew York, which is fully reported in People v. Woodruff, 32 N. Y., 355, the Comptroller of the city, Brennan, paid the salary of the incumbents’ deputy; and the adverse claimants having finally prevailed, Morgan, their deputy, the relator in the present proceeding, moved for a mandamus to compel payment of his salary.
    
      C. Trull, for the defendant,
    objected that the relator had not actually performed the duty of a deputy, and that the claim had not been audited and there were no funds in the .treasury applicable to it, citing, as to the last point, § 5 of the act of 1857, relative to the Board of Supervisors of Hew York, which prohibits the drawing of money from the treasury for any purpose unless it has been previously appropriated thereto by law.
    
      I. T. Williams and Mr. Smyth,
    
    for the relator, as to the first objection cited and commented on People v. Tieman, 8 Abb., 350.
    
      As t'STSe second objection counsel urged that audit was unnecessary, because the amount of the claim, alleged in the writ, was . admitted in the return, by omitting to deny it, and only setting forth reasons why it should not be paid; moreover, that this claim was not an “ account”.within the statute, nor was it against the city; and that the relator’s only remedy was by mandamus.
    As to the objection on the ground of want of funds, he cited and commented on the act of 1859, § 3; The Queen v. The Trustees, &c., 1 Q. B., 860; see also 1 Gale & D., 218 ; Tapping on Mand., 60 Law Library, 359; Queen v. Eastern Counties Railway, 10 Ad. & El., 531.
   Clerke, J.

I think that the defendant was justified in paying the salary, now demanded by the relator, to the actual incumbent of the office, during the period in question. The Special and General Terms of this Court decided that the Commissioners who appointed him, were themselves legally appointed. Before this decision was reversed by the Court of Appeals, and while it was operative as the law, and, consequently, binding upon him, the defendant paid to the incumbent the money which had been appropriated, and which was then in the treasury, for such* payment. If he was justified in doing this, he cannot now be compelled to pay the relator out of the public money under his control. There Is no appropriation for such ■ payment; 'and, consequently,- there is no money in the treasury for this specific purpose. It would be a violation of law for the Comptroller to take money appropriated for some other purpose, and apply it to this. I cannot direct, much less compel him to do what would amount to an infringement of his duty and of the law. Whatever other remedies the relator may have, if he has any, this application cannot, in my opinion, be granted.

Motion for a mandamus denied  