
    In the Matter of the Application of Francis Macholdt, Respondent, for a Peremptory Writ of Mandamus Directed to William A. Prendergast, Comptroller of the City of New York, Appellant, Commanding Him to Pay Forthwith an Award Made for Parcel No. 182 in Proceedings Heretofore Instituted and Confirmed Entitled “In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., to the (Lands and Premises Required for the Opening and Extending of Van Alst Avenue from Nott Avenue to Hoyt Avenue, in the First Ward, Borough of Queens, City of New York.”
    Second Department,
    April 21, 1911.
    Municipal corporations—street opening, city of New York—mandamus to compel payment of award. •'
    Under section 1001 of the ©Jeater New York charter, providing that the court in street opening proceedings may enforce the payment of an award by an order or mandate,' it may issue a peremptory writ of mandamus directing the' comptroller of the'city to pay an award where there is no contention that the relator is not entitled thereto.
    The city, having unlawfully refused to pay the award, .cannot contest the ' claimant’s right to proceed by mandamus rather than by motion'merely because he will obtain grejater costs thereby. .
    
      Appeal by William. A. -Prendergast, comptroller of the city of New York, from an order of the Supreme Court, made at the Queers County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of November, 1910, directing the issuance of a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the amount of ah award, with fifty dollars costs.
    
      Joel J. Squier [Joseph J. Myers, G. E. Draper and Archibald R. Watson with him on the brief], for the appellant.
    
      Benjamin Trapnell [Joseph A. Flannery with him on the brief], for the respondent.
   Woodward, J.:

It is not seriously contended on this appeal that the respondent is not entitled to an order directing the comptroller- of the city of New York to pay the amount of the. award for damage parcel No. 182 in the above-entitled proceeding. The objection is raised that the court has directed that a peremptory writ of mandamus issue in place of an ordinary order of the court, and that the costs of fifty dollars are burdensome upon the city. Section 1001 of the Greater New York charter (Laws of 1901, chap. 466) provides that: “All damages awarded by the commissioners of estimate and assessment with interest thereon from the date of said report, and all costs and expenses which may be taxed, shall be paid by The City of New York,” etc., and then it is provided that: “The person or persons to whom awards shall be made in such proceedings, and the person or persons in whose favor costs and. expenses may be taxed, shall not have an action at law against The City of New York for such awards, costs or expenses, but the court in which said proceedings have been had, upon the application of any such person or persons, in case of the failure of the comptroller of said city to pay the samé within thirty days after demand there-", for, shall require and direct the comptroller to pay said awards, j costs; and expenses from the said fund, and enforce said order | or mandate in the same manner as other orders and mandates ¡ of said court are enforced:” (See, also, Laws of 1906, chap. 658, amdg. § 1001, supra.)

• There can be no donbt, if there wa's no other adequate remedy at law, the court wcjuld be justified in issuing its writ of y- peremptory mandamus to compel the comptroller of the city. of New York to pay an award out of a fund which had been provided for that particular purpose without any statutory , provision. The statute in this case takes away the right to an \ action at law, arid makes it the duty of the court to “ require I and direct the comptroller to pay said awards, ” without .prescribing the form in which the comptroller is to be required or directed to act, except that upon “ the application of any such person or persons,” thejcourt is to “require and-direct the comptroller to pay,” and that the court shall “ enforce said order or mandate in the same, manner as other orders arid mandates of said court a!re enforced.” Subdivision 2 of section 3343 of the Oodó of Civil Procedure defines a “mandate” as including “ a writ, process, or other written direction, issued pursuant to law, out of á court, or made pursuant to law, by a court, or a judge, or a ¡person acting as a judicial officer, and commanding a court, board, or other body, or an officer, or other person, named or otherwise designated therein, to do, or to refrain from doing, ajn act 'therein specified,” and a mandamus is defined as “a !command issuing from a court of law of competent jurisdictiori, in the name of the State or sovereign, directed to some inferior; court, officer, corporation, Or person, requiring them to do some particular thing therein specified, which appertains to theif office or duty.” (19 Am. & Eng. Ency. of Law [2d ed.], 716.) ■ Obviously the duty of the court, to “ require and direct the Comptroller to pay ” 'is broad enough /to authorize the issuing of a mandate,- and this is clearly provided for by the statute,¡and a “mandate,” as defined by the Code of Civil Procedure,.| is comprehensive enough to include a writ of mandamus, and as the court is set in motion “ upon the application of any srich person or persons,” and the court is authorized to issue, a mandate requiring and directing the comptroller to pay, we know of no good reason why the court should not, upon the application of a person whose money is unlawfully withheld, issue its mandate in the form of a writ The respondent has an absolute lawful right right to make the application to the .of mandamus, to his money; he has a court in any form which pleases him, and the court has the right to grant the relief asked for hy the issuance - of its mandate requiring and directing the comptroller to pay the award. If the costs are more than they would be if the respondent had been content with an order, that is a matter which might have been taken into consideration when the respondent was denied his money, and we are not disposed to put him to further trouble and expense in securing that which belongs to him as a matter of right because it may be more expensive to the plaintiff than some other method would have been.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  