
    The People of the State of New York ex rel. Adams Dry Goods Co. and Others, Appellants, v. John M. Woodbury, as Commissioner of Street Cleaning of the City of New York, Respondent.
    
      Peremptory mandamus—statements in opposing affidavits assumed to be true — denied where the demand is for greater relief than is proper — it will not issue to correct administrative or discretionary acts—discrimination in the removal of ashes in New York city between department stores and residences — what the street cleaning commissioner is obliged to remove.
    
    On an application for a peremptory writ of mandamus, statements contained in the opposing affidavits, whether by way of denial or in affirmation of new matter, are to be taken as true.
    Where an applicant for mandamus asks for more than he is entitled to, the appli- ’ cation should be denied, even though he may be entitled to some relief.
    A mandamus will not issue to correct abuse in administrative acts or to compel an act requiring discretion or to review such an act.
    The city of New York, having assumed the duty of removing all ashes, street sweepings, garbage and other light refuse and rubbish which accumulates in the city, a purely arbitrary distinction in favor of some inhabitants of the city and against other inhabitants will not be tolerated.
    Where, however, owing to the inadequacy of the appropriation for the street cleaning department and the insufficiency of its equipment all the inhabitants cannot be served, the commissioner of street cleaning may, in his discretion, while removing ashes from private residences, refuse to remove them from department stores, and the exercise of such discretion is not reviewable by the courts.
    The commissioner of street cleaning is not bound to remove trade waste, whether in the form of ashes, garbage or any other kind of refuse matter.
    
      • Appeal by the relators, Adams Dry Goods Co. and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office oí the clerk of the county of New York on the 4th day of March, 1903, denying the relators’ motion for a peremptory writ- of mandamus.
    The petitioners, who are proprietors of what are known as department stores, applied to the Supreme Court for a peremptory writ of mandamus to compel John M. Woodbury, commissioner of street cleaning of the city of New York, to “forthwith remove from the premises of your petitioners, and the streets in front of and adjacent thereto, the ashes, street sweepings, garbage and other light, refuse and rubbish which have therein or thereon accumulated ; and, in the event that for any reason a peremptory; writ •cannot issue, that then an alternative writ issue for the same relief, in accordance with the practice .in such case,” and for other and further relief. In their petition they set forth that they are severally engaged in conducting a very extensive business in their respective stores, all of which are situated in a busy shopping district in the borough of Manhattan, in the city of New York ; that the streets upon which their respective stores are located are public highways, under the care and in the custody and control of the commissioner of street cleaning; that by chapter 466 of the Laws of 1901 provision is made for the appointment of a street cleaning commissioner; that Mr. Woodbury was duly appointed such commissioner- on the 1st of January, 1902, and that he duly qualified as such, and has ever since continued at the head of the street cleaning department, and that it was, and still is, his duty to remove from the streets of the city ashes, garbage and other light refuse and rubbish, and that it is made his duty by law “to sweep and clean all the streets of the Boroughs of Manhattan, The Bronx and Brooklyn, and to remove, or otherwise dispose of, as often as the public, health and the use of the street may require, all ashes, street sweepings, garbage and other light refuse and rubbish.” That by section 539 of chapter 466 of the Laws of 1901 it is provided that “ all avenues, streets, alleys and places in said city, which the said Department of Street Cleaning is by said act- charged with the duty of cleaning, shall be cleaned, and kept clean by hand labor ; ” and that it is the duty of the commissioner of street cleaning to divide the city into a certain number of districts for the purpose of street cleaning; that by section 541 of the same statute it is made his duty to purchase or hire, from time to time, for his use as such commissioner, at current prices, such and so many horses carts, tugs, scows, machines and tools and other property as may be required for the economical performance of his duties, or to contract for the construction of such carts, tugs, scows, machines and tools for the use of the sweeping of the streets and the removal of street sweepings, and to remove from said streets ashes, garbage and other light refuse and rubbish. The petitioners then set forth that it is the duty of the commissioner to remove ffom their respective stores and the streets in which they are located, ashes, street sweepings, garbage and other light refuse and rubbish which have therein or thereon accumulated; that since on or about November 24,1902, the commissioner has failed, neglected and refused to remove from the place of business of each of the petitioners, and the streets in front of and adjacent thereto, ashes, street sweepings, garbage and other light refuse and rubbish which have therein or thereon accumulated ; that he has continued to remove from places of business other than department stores, and from the private residences of the city of New York, and the streets in front of and adjacent thereto, ashes, street sweepings, garbage and other light refuse and rubbish which have therein or thereon accumulated, and that he has discriminated against the petitioners and the owners of and pei’sons conducting department stores in favor of persons owning, conducting or carrying on a business other than that of a department store, and in favor of the private residents of the city of New York; that such discrimination is unjust, illegal and inequitable, and without right or warrant in law ; that the commissioner of street cleaning has declared, and stated that such discrimination has been made and will be continued, and that he has admitted that he has refused and neglected to remove the ashes, street sweepings, garbage and other light refuse and rubbish which have accumulated on the premises of the petitioners, and that he has declared and announced that the same would be continued; that such discrimination has been made since November 24, 1902, and that before that time no such discrimination was made against the petitioners or either of them; that prior to that date the petitioners were given service similar to that which was received by the owners or persons conducting a store or business other than a department store and in the residential portion of the city, but that since November 24,1902, discrimination has been made and that the petitioners have been informed by the street cleaning commissioner such discrimination will be continued and the uniformed force of the department will be-and have been since that date permanently and continuously employed in the cleaning of the streets in front of and adjacent to stores and business places other than department stores and the residential portion of the city, and the commissioner has neglected to clean the streets in front of and adjacent to the department stores, or to remove the ashes, street sweepings, garbage or other light refuse and rubbish which have therein or thereon accumulated; that the petitioners complained of such neglect to the commissioner and demanded that he forthwith clean the streets in front of and adjacent to their premises and remove the ashes, street sweepings, garbage" and other light refuse and rubbish which have accumulated in or on their premises, which he declined to do; that prior to December 25, 1902, ■ the proper authorities of the city of New York made appropriations to enable the street cleaning commissioner to perform the duties required of him by law; that he was allowed $5,362,112.20 for that purpose, with $32,400 as an additional allowance for general administration; that of the aggregate sum so allowed $3,782,693.21 was granted for the use of the commissioner in the boroughs of Manhattan and The Bronx, and of the last-mentioned sum $2,666,492.30 was allowed for sweeping and cleaning; $215,500 for administration and $107,728.90 for supplies and contingencies, and that, only, a small portion of said sums has been spent or expended for the purpose of cleaning and removing the ashes, garbage, street sweepings and other light refuse and rubbish from the streets and thoroughfares of the city of New York.
    On this petition a motion was made for. a peremptory writ of mandamus. An affidavit was submitted by the commissioner, who, after making certain denials, admitted that he has continued to remove from places of business, other than department stores, and from the private residences of the city of New York and the streets in front of and adjacent' thereto, ashes, street sweepings, garbage and other light refuse and rubbish which have therein or thereon accumulated; that the conduct of the street cleaning department: in respect of those matters is regulated by an order of the department, dated November 17, 1902, which is in the following words:
    “ Department of Street Cleaning,
    “ City of New York,
    “New York, November VHh, 1902.
    “ General Order, No. 14.
    “ The constantly increasing output of steam ashes and other trade waste from large business houses, office buildings, etc., having outgrown the capacity of the Department plant, and the condition of the appropriation not being such as to warrant a continuance of such service, District Superintendents will notify those in charge of office buildings, wholesale houses and department stores from, which removals by the Department are now being made that on and after Monday, the 24th instant such service will cease, and that on and after that date it will be necessary for them to make other arrangements for the removal of such material. They will at. the same time be duly notified that the Department of Street Cleaning will receive at the Department dumps such steam ashes, etc., on the Department scows for final disposition when hauled there in conformity to Department rules and regulations governing such, privileges.
    “ By order of the Commissioner,
    “F. M. GIBSON,
    “ Deputy Commissioner.”
    The affidavit of the commissioner also contains a statement of the amount appropriated by the board of estimate and apportionment, for the year 1903 for the street cleaning department, by which it appears that $3,782,693.20 was appropriated for the purposes of the department for the boroughs of Manhattan and The Bronx; and the commissioner swears that the amount was wholly inadequate to provide the department with the necessary facilities for the performance of its work; that with the present facilities and machinery and apparatus for the performance of the work required of it by law it would be impossible for the department to remove the ashes, light rubbish and trade waste of the large business houses and office buildings and other similar institutions of the city without neglecting to a dangerous extent the most necessary and essential work of the department, and that for which it was primarily instituted; that in view of that fact the order above quoted was issued. The affidavit then sets forth that the enormous output of steam ashes and other trade wastes from large business houses, office buildings and department stores has outgrown the capacity of the plant of the department ; that- the great buildings which have been erected all over the city for the purposes of offices, department stores and factories, which manufacture their own heat, electricity and steam power, have so outgrown the ability of the department to transport their waste that they can no longer be handled by the department with its present equipment; that the carts which are used in the street ■cleaning department are absolutely necessary for the collection of the ashes and garbage in the residential portion of the city and in the tenement-house districts; that during the summer the carts that were used in the residential portion of the city were sent to the tenement-house districts, and the department was able during - the summer to a large extent to handle the ashes and rubbish of the large department stores and office buildings, but by the return to the city of the people in the fall •of the year, and the increase in the amount of waste of all kinds, it was unable to collect the ashes from the office buildings and department stores after the summer. The commissioner then sets forth that he regards it as his first duty to sweep and clean the ■streets and remove such dirt and rubbish as would ordinarily be gathered together by the sweeping and cleaning of the streets and to remove such substances as are injurious to the public- health ; that trade waste, boxes, shavings, sawdust, ashes, etc., do not interfere with the public health, however unsightly they may be; that one of his important duties is the removal of animal or vegetable substances deemed by the board of health to be dangerous to the public health; that section 1542 of the Greater blew York charter requires the commissioner to so regulate the expenditures of the department for ■ any purpose or object that the same shall not in any one year exceed the amount appropriated by the board of estimate and apportionment for such purpose or object, and that in pursuance of that. requirement he has ordered and regulated -the business of his, department, and he sets forth that he is and will be unable to remove-or cause to be removed from the premises of the petitioners the ashes, rubbish and other light refuse which now have or hereafter may accumulate thereon or therein; that he has kept clean the streets in front of the premises and will continue so to do and that he is now and has been at all times willing to remove the garbage of the petitioners. The court denied the motion for the writ, and from the order entered thereupon the relators appeal.
    
      Daniel P. Hays, for the appellants.
    
      Terence Farley, for the respondent.
   Patterson, J.:

The case comes before us on the petition and an affidavit in answer thereto. It is hot claimed by the appellants that any issue of fact should have been tried as upon an alternative writ. The affiant does not admit all the allegations of the petition. He denies that he (the street cleaning commissioner) has refused to remove the garbage from the premises of the petitioners, and avers that he has always kept the streets cleaned in front of the petitioners’ premises and will continue so to do. His refusal was to remove or cause to be removed from the premises of the petitioners ashes, rubbish and other light refuse which now have accumulated or hereafter may accumulate thereon. The petitioners’ claim is, as it is now urged, that upon the facts as they are stated in the only record we have they are entitled to a peremptory writ. As the petitioners take that attitude, we must regard the affirmative allegations of the answer as true, and a peremptory writ of mandamus can only be granted where the facts 'are unquestioned, showing a clear legal right. On application for a peremptory writ of mandamus statements contained in the opposing affidavits, whether by way of denial or in affirmation of new matter, are to be taken as true. (People ex rel. Gibbons v. Coler, 41 App. Div. 463; Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; People ex rel. Corrigan v. Mayor, Id. 215.) We must, therefore, assume that the respondent has not refused to remove garbage, as alleged by the petitioners, and that he has kept the streets cleaned in front of their premises. They were not, therefore, entitled to the per-, emptory mandamus they demanded, for that looked to the awarding of some relief to which they are not entitled; and it has been held that where an applicant for mandamus asks for more than he is entitled to, the application should be denied, even though he may be right in other respects. (People ex rel. Byrnes v. Green, 64 Barb. 162; People ex rel. Ketteltas v. Cady, 2 Hun, 224.)

But passing that and regarding the application as limited to the removal of ashes and light refuse and rubbish from the premises of the petitioners^ they insist that they have a legal right that the commissioner remove such matter from their premises^ They specifically disclaim any demand that he remove what is called trade waste. They call our attention particularly to the fact that they “ now only-ask that the duty of the commissioner be enforced as to ashes and garbage.” The answer of the commissioner that he has not refused to remove garbage is conclusive, and the petitioners being thus limited to an application to compel him to remove from their various-department stores the ashes that have accumulated, the only question is, whether they have á clear legal right to that specific relief.. They claim it under the provisions of the Revised Greater Hew York charter which relate to the duties of the street cleaning commissioner. The court below refused the writ on the ground that the duties of that official, as defined and prescribed by the revised' charter, are-administrative in their character and necessarily such as involve the exercise of wide discretion in their performance. Mandamus will not lie to correct abuse in administrative acts (Matter of Croker, 78 App. Div. 184) or to compel an act requiring discretion or to review such an act. (People ex rel. Wooster v. Maher, 141 N. Y. 337; People ex rel. Demarest v. Fairchild, 67 id. 334.)

The right of the relators to have ashes or other material removed from their premises accrues to them only by virtue of the municipality, under the laws of the State, assuming to discharge a duty which otherwise would repose upon the citizens themselves. “ The burden of removing the ashes, if the owner does not wish them to-remain longer on his property, is primarily just as much his personal obligation as it was to bring to his premises, in the first instance, the-coal from the burning of which the ashes proceeded.” (Cullen, J., Quill v. Mayor, 36 App. Div. 476.) But the city having assumed the duty, and the commissioner of street cleaning being charged with the performance of that duty, a purely arbitrary discrimination made in favor of some and against other inhabitants would not be tolerated. One citizen has as much right to the performance of the public service as another, but where, from the existence of conditions which are undisputed, all cannot be served, it is evident that a necessary and unavoidable discrimination in the performance of duty must be made; and in making it the street cleaning commissioner is obliged to exercise his own discretion. The duties imposed upon him by the provisions of the Greater New York charter are multifarious. By section 534 of that charter he has control of the sweeping and cleaning of the streets of the boroughs of Manhattan, The Bronx and Brooklyn ; the removal or other disposition, as often as the public health and the use of the streets may require, of ashes, street sweepings, garbage and other light refuse and rubbish, and the removal of snow and ice from leading thoroughfares and from such other streets within the said boroughs as may be found practicable. To accomplish all the purposes of these requirements there is appropriated annually by the board of estimate and apportionment a certain sum of money. The street cleaning commissioner is prohibited by law from making expenditures exceeding that amount. (Revised Greater N. Y. Charter, § 1542.) The plant of the department, as the affidavit of the commissioner shows, is insufficient to enable him to perform all these duties, including the removal of ashes and rubbish from every house and every store and every factory in the boroughs of Manhattan and The Bronx. He shows that the department is absolutely unable, with its present equipment, to do so; and his appropriation was insufficient to provide the necessary facilities for the performance of all this work.

Under such circumstances, it remained for the commissioner, in the exercise of his best judgment, to determine what should be done in the performance of that work with the facilities at his command qnd the appropriation by which he was limited. If he removed the ashes and waste from the great department stores and factories, leaving such things to accumulate in tenement houses and private dwellings, the owners and occupants of such buildings would have the same cause of complaint as that now urged by the relators. The commissioner was confronted with a condition, not of his creation, and over which he could exercise no other control than that of the exercise of discretion in doing his work. A necessity for discrimination existed, and the exercise of his judgment in that necessity is nót a matter to be reviewed or controlled by the courts. We think it was within the power of the commissioner to promulgate ■the order now complained of. The manner of the performance •of work, where arbitrary and unjust and uncalled for discrimination is not made, but where it is compelled by supreme necessity, is within the discretion of the commissioner.

We are, therefore, of the opinion that the court below was right in refusing the writ and that the order appealed from should be affirme'd, with fifty dollars costs and disbursements.

O’Brien, J., concurred.

Laughlin, J.:

I concur. I also agree with the rule stated by Presiding Justice Wan Brunt.

Van Brunt, P. J.:

I concur in the result. I do not think the commissioner is bound to remove trade waste, whether in the form of ashes, garbage or any other form of refuse matter.

McLaughlin, J., concurred.

Order affirmed, with fifty dollars costs and disbursements.  