
    People ex rel. Kellner, v. Mayor, etc., of the City of New York.
    (New York Superior Court
    Special Term,
    March, 1893.)
    'The board of estimate and apportionment of the city of New York was authorized by an act of the legislature to examine relators’ claim against the city and to determine what sum “is justly due and owing, and right, in equity and justice,’’ and the Statute of Limitations was not to be regarded as a bar to the demand. Held, that the authority to audit carried with it the duty, and was of a mandatory character; that relators are entitled to a peremptory writ commanding the board to perform its duty under the act referred to, and in accordance with its provisions.
    Application for peremptory writ of mandamus.
    
      JR. Dmidson and I. L. Miller, for relators.
    
      Wm. S. Olwrk, Corporation Counsel, and D. J. Deem, opposed.
   MoAdam, J.

The late firm of Kehr, Kellner & Co. supplied furniture to the fire department in March, 1873, to the value and amount of $1,083. Kehr at the time, was an aider-man, and by force of the act of 1870 (Chap. 137, § 115), prohibiting certain officers therein named from being interested in any contract with the city, the transaction with Kehr’s firm was made illegal, so that no recovery could be had upon it. Mullaly v. Mayor, 3 Hun, 661. To remove this obstacle to the collection of said demand, the legislature passed an enabling act (Laws 1888, chap. 89), authorizing the board of estimate and apportionment to examine said claim and to fix and determine what sum “ is justly due and owing, and right in equity and justice ” to be paid to said firm, and the Statute of Limitations was not to be regarded as a bar to the demand. This act could have had but one purpose, and that to deal with the claim of the relator's according to “ equity and justice ” — that is, without regard either to the Statute of Limitations or the technicalities thrown in the way of its collection by the act of 1810, supra,.and by the decisions in the MuTlaly and kindred cases. The passage of the act was a valid exercise of legislative power, for as the court said in Town v. Supervisors, 13 N. Y. 149, “the legislature is not confined in its appropriation of the public moneys * * * to cases in which a legal demand exists. * * * It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude and charity.” The authorization was not one which the board might disregard at pleasure. The authority ‘to audit carried with it the duty, and this of a mandatory character. In Mayor v. Furze, 3 Hill, 612, Chief Justice Helsok, after citing and commenting on many cases, laid down the rule that where a public body or officer has been clothed by statute to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive, and not peremptory. In such cases the word “ may ” is tantamount to “ shall.”

The same principle runs all through the books. Phelps v. Hawley, 52 N. Y. 23; People v. Supervisors, 51 id. 401; People v. Supervisors, 68 id. 114; Hagadorn v. Raux, 72 id. 583 ; Cain v. City, 95 id. 83. The proceeding was properly brought in the name of the surviving members of the firm (Williams v. Whedon, 109 N. Y. 333), and as there is no legal answer to the application, the relators are entitled to a peremptory writ commanding the board to perform its duty under the enabling act before referred to, and in accordance With its provisions.  