
    PEOPLE ex rel. NEW YORK & HARLEM RAILROAD COMPANY v. HAVEMEYER.
    
      Supreme Court, First Department, First District;
    
    
      Special Term,
    1874.
    Mandamus.—New Yoke.
    Where it appears that work authorized by law to be done at the expense of a municipal corporation, who are to collect such expense from the tax payers, has been done, and all the requirements of the statute have been complied with : the money to be paid on the part of the city, has been collected and paid into the city treasury ; the city auditor has certified to the justice of the claimant’s demand therefor ; and the comptroller has drawn his warrant in the claimant’s favor,—a peremptory mandamus will issue to compel the mayor to countersign the warrant.
    The justice of devolving the costs upon the individual officer, instead of on the municipality, is a reason for allowing a mandamus, even though it be suggested that an action would lie.
    This was an application for a peremptory mandamus to compel the respondent, William F. Havemeyer, as mayor of the city of New York, to countersign a warrant drawn by the comptroller of the city.
    Chapter 702 of the Laws of 1872 (2 Laics of J872, 1674), which provides for impi-oving and regulating the use of Fourth-avenue, in the city of New York, and creates a Board of Engineers to take charge of and manage the work therefor, in the seventh section, enacts that one-half the cost of such work shall be borne by the New York & Harlem Railroad Company, and one-half by the city of New York, and “ when and as often as it shall appear, by the certificate of the superintending engineer of the work upon said improvement, that the sum of twenty-five thousand dollars has been expended thereon by the New York & Harlem Railroad, specifying the portions and divisions of the said improvement, when the said expenditure has been made, the comptroller of the city of New York shall draw his warrant upon the treasury of the said city, in favor of the treasurer of the said railroad company, for one-half of said sum, which shall be duly signed and countersigned by the proper officers of said city, and delivered to the railroad company for and on account of the one-half of the expense and cost of said improvement, to be borne and paid by the said city as aforesaid.”
    Section eight provides that the one-half of the estimated cost of the improvement which is to be borne by the city, shall be raised by taxation upon the real and personal property, and one-half thereof shall be included in the tax levy of 1872, and the other half in the tax levy of 1873. The comptroller of the city is directed to issue revenue bonds to meet the amount to be paid by the city, and the section thus concludes : “It is hereby intended and declared that the payments of the city of New York are to be made in the proportion and as fast as they are made by the said railroad company during the progress of the work on the said improvement.”
    After the passage of this act, the relators proceeded, under the direction of the said board of engineers (which board has pursued each and every step required by the law to be taken), to make the improvement.
    The city of New York raised by tax, including it in its tax levy of 1872, one-quarter of the whole estimated cost of the improvement, and there was collected and paid into the treasury of the city the sum of one million five hundred and eighty-seven thousand dollars and fifty cents, to meet its share of the cost of the work.
    By the act of April, 1873, payments by the corporation of the city of New York must be made through the proper disbursing officer of the department of finance, on vouchers to be filed in said department, by means of warrants drawn on the chamberlain by the comptroller, and countersigned by the mayor. Connected with the finance department is an audit bureau, which, under the supervision of the comptroller, is required to audit, revise, and settle all accounts in which the city is concerned as debtor or creditor, the chief officer of which is called the auditor of accounts.
    On May 14, 1874, a certificate, in conformity with the provisions of the act under which the improvement is making, was made out by the superintending engineer, and delivered to the comptroller of the city of New York, certifying that two hundred and seventy-six thousand four hundred and sixty-six dollars and ninety cents had been expended upon the improvement, specifying the portions and divisions of the same where the expenditure was made.
    The auditor of the bureau of accounts, having duly examined the certificate, certified a claim for one-half thereof to the comptroller, which latter officer drew a warrant for one-half the amount of the certificate of the superintending engineer, to wit, for one hundred and thirty-eight thousand two hundred and thirty-three dollars and thirty-five cents, and duly signed the warrant, which warrant was also countersigned by the mayor.
    After the mayor (William F. Havemeyer) had countersigned the warrant, he caused his name to be taken therefrom, and now refuses to countersign the same, though he has been requested so to do.
    The money wherewith to pay the said warrant was then and now is in the treasury of the city.
    No disputed question of fact arises upon this application. N o question of fraud or collusion is urged.
    
      
      Henry H. Anderson and Ohauneey M. Depew, for the relator.
    
      Simon Sterne, for the respondent.
   Westbrook, J.

[after stating the facts].—The objection that a mandamus was not the proper remedy, was argued preliminarily, and disposed of prior to hearing the argument upon the merits. It may not be improper, however, as this case is one of great public interest, to state briefly the reasons which influenced that decision. Assuming the validity of the act of 1872, the doing the work, the honest expenditure of the money, and all the facts set out in the moving papers (all' of which mast be assumed in disposing of this preliminary objection), a plain duty was imposed upon the respondent by the statutes of the State, one which was imperative and mandatory, the non-discharge of which worked gross wrong and injustice to the relator. No other remedy was adequate and proper to meet the case. The taxpayers and all the officers of the corporation, other than the respondent, had faithfully and completely discharged their various duties. The money had been collected and paid into the city treasury—the auditor, under the direction of the comptroller, had certified to the justice of the claim—the comptroller had drawn his warrant for the amount, and the only obstacle to its payment was the want of a counter-signature of the mayor, who (all this must be conceded in asking a refusal of the writ on this ground) without reason and without cause, declines to affix his name to a warrant which the law declares he shall do. What other remedy will meet this case % Granting, for the sake of argument, that an action could be maintained against the corporation for labor performed and moneys expended under the act (which, as the law specially provides for the ascertainment of the claim, the mode of raising the money, and its payment, I do not believe), what propriety is there in subjecting the municipality of the city of New York (as well as the relator; to the costs and expenses of an action at law to enforce a claim which every tax-payer and officer thereof, except the mayor, desires to have paid, and has done all in his power to have discharged? Within every principle which has ever been held upon the writ of mandamus, it must be the proper remedy. No other will reach the evil, and devolve the costs of the proceedings where they belong, if the points urged upon the merits do not justify the Mayor in refusing to perform the official act.

¿he reasons which influenced us in holding that a mandamus is the appropriate remedy in this proceeding, are fully sustained in The People v. The Supervisors of Columbia County (10 Wendell, 363), and The People v. Mead (24 N. Y., 114; see pages 120, 121, 122, 123). In the latter case, Judge Denio, in commenting upon some decisions which have been strenuously urged to this court, says : “ But I do not think these cases fully in point against the plaintiff. None of them present the case of a proceeding prescribed by statute for raising money by a local tax for the benefit of a class of creditors, where that proceeding has been carried on, according to law, nearly to its completion, where it has proved effectual in raising the money from the tax-payers, who were the proper parties charged with its payment, and where the only step wanting to ' produce satisfaction to the creditor is the payment of the money, so raised, into his hands. If the defendants are allowed to persist in refusing to make payment, on the ground that the relator has a right of action against the town, the anomaly would be presented of the legal pursuit by a creditor of money owing by the town, which it had already raised and collected from the taxpayers, and placed in the hands of a public officer for the purpose of being paid to its creditors—all in per-for manee of specific statutory directions—but where in consequence of the perversity of the official person, whose duty it was made to pay it over, it could not be obtained by the creditor.” This is the exact course of argument which influenced us in overruling the motion to dismiss the proceedings upon the ground that the remedy asked for—a mandamus—was not the appropriate one, and with a single further citation from the same opinion of Judge Denio, in which he comments upon the other case we have cited (The People v. The Supervisors of Columbia County), we close the discussion of this preliminary objection: “If the opinion should be thought to go too far in denying the liability of the county to an action, still the case is an authority for holding that when a particular method of raising money for local public purposes is prescribed by statute, the party entitled to receive it has a right to the full and perfect execution of the power conferred, which may be enforced by the writ of mandamus.”

But it is further objected (and this objection goes to the merits of the application), that the certificate given by the superintending engineer, and for one half of which the comptroller of the city drew his warrant, includes items not expressly chargeable, under the act of 1872, to the cost of the improvement. If this objection be well taken, the amount of the illegal charges embraced in the certificate, is of no consequence, and hence the application for a reference to ascertain the exact amount of such improper charges was refused. The certificate could only include such items as the law aforesaid authorized, and if it was made up in part of sums unauthorized, the application for the writ would be refused if such amount was great or small.

[His Honor then proceeded to consider at length the application on its merits.]

The result of my examination is, that the peremptory mandamus asked for should issue.  