
    SUPREME COURT.
    John L. Buck, respondent, agt. The City of Lockport, appellant.
    
      Fourth Judicial Department, General Term,
    
    
      May, 1872.
    Where a municipal corporation (the city of Lockport) enters into a contract with an individual, for the payment to him of a specific sum of money, on a certain day, and after it becomes due they neglect or refuse to put the proper machinery iu motion to raise the necessary funds, or to put the claim presented in the proper shape for liquidation and payment, within a proper time, the law gives the creditor his remedy by action, to compel payment. He is not compelled to resort to proceedings by mandamus.
    
    A municipal corporation does not stand in respect to such claims on the same footing with counties of the state where the only remedy of a creditor of this kind is by mandamus.
    The principle applicable, in such cases, to counties has never been extended to village or city corporations, existing and acting under special charter.
    
      Before Mullin, P. J., Johnson and Talcott, JJ.
    
    This is an appeal from a judgment of the county court of Niagara county, affirming the judgment of a justice’s court.
    John L. Buck, respondent in person.
    
    James F. Fitts, for appellant.
    
   By the court, Johnson, J.

—The action was upon a contract between the plaintiff and the common council of the city, by which the former rented to the latter certain premises to be used ;as a pound for the impounding of animals by the corporation. The contract was concluded on the 14th of June, 1869. The rent agreed upon was $25, to be paid the 1st of January, 1870. On the 4th of April, 1870, the plaintiff presented his claim for the rent, to the common council of the city, and it was by them referred to the committee of that body on accounts.

Nothing more was done with it, and on the 4th of November following, the plaintiff again presented the same account in due form. No order of the common council was made for the payment of the claim, nor warrant drawn upon the treasurer according to the provisions of. the charter, and the plaintiff failed wholly to obtain payment by that means.

This action was commenced on the 26th of November, 1870, nearly eleven months after the demand had become due and payable by the terms of the agreement. By the city charter, the common council are. authorized to provide and establish a public pound.

On the part of the defendant it was shown, that the common council on the 12th of July, 1869, caused the annual tax to be levied for the payment of expenses and claims to ' the amount of $16,500, which was the full amount they were authorized to raise in that way, by the charter, which amount was collected and paid into the treasury, and that the sum of $8,120 82 was received and paid into the treasury from other sources. It was further shown, that on the 1st of January, 1870, the general funds in the treasury had been overdrawn and so continued through the fiscal year, and that on the 32th of September, 1870, the common ' council again by resolution caused to be levied the sum of $16,500, in pursuance of their powers under the charter.

By the charter it is provided, that all accounts and claims against the city shall be presented to "the common council, and that the same shall by that body be referred to the staning committee on accounts, whose duty it is to examine into said accounts, and report thereon to the common council, either favorably or' adversely, with their reasons ; and the common council is then to hear, examine and determine the same in like manner as a board of town auditors. If the claim is allowed, or any part thereof, the common council is then to make an order for its payment, upon which the clerk of that body draws and signs a warrant on the treasurer which is to be countersigned by the mayor of the city, before the amount allowed csm be paid.

It is contended on behalf of the deiendant, that an action . x ' for a demand or claim of this kind, cannot be maintained against the corporation, that the city stands in respect to such claims, on the same footing with counties of the state,- and that the only remedy of a creditor of this kind, is by mandamus, to compel the common council to proceed and examine and allow the claim, and make the order for its payment. In respect to counties, it has been held that an action for such a cause cannot be maintained, but that the remedy of a party is by mandamus to compel the board of supervisors to discharge the duty which the law imposes upon it, in regard to claims against their county. This is upon the ground that counties are political divisions of the state, possessing and exercising a measure of its sovereignity, and that the only means the law has provided for the payment and satisfaction of such claims against the county, is to-have them presented to the board of supervisors, who are required to examine, settle and allow” all such as are chargeable against the county, and direct the raising of such sums as may be necessary to defray the same” by tax (Bradly agt. The Supervisors of New York, 2 Sandf., 460, S. C., 10 N. Y., 260 ; Martin agt. Supervisors of Greene Co., 29 N. Y., 645 ; People agt. Supervisors of New York, 32 N. Y., 473 ; People agt. Supervisors of Delaware Co., 45 N. Y., 196 ; McClure agt. Board of Supervisors of Niagara Co., 50 Barb., 594). This rule is founded in considerations of public policy and expediency, and proceeds upon the same principle with that which refuses to allow an individual citizen to have a right of action against the state for claims against it, but provides for the payment of all such claims by means of official audit, appropriation act, taxation, and-warrants iipon the treasurer.

But this principle has never been fully extended to village or city corporations existing and acting under special charters. In respect to such corporations the rule extends no further than to exempt them from liability to action for the recovery of such claims, primarily, or in the first instance.

The law presumes in respect to ah such claims, that they' are contracted or created, in reference to the power of the corporation and the ways and means at its command of obtaining funds for payment, and wih not allow such bodies to be harassed by actions, unless they refuse, or fail, to exercise their powers, or to use the means at their command to enable them to make payment and satisfaction in the prescribed form.- ■

But if they refuse or neglect to put the proper machinery in motion to raise the necessary funds, or to put the claims presented in the proper shape for liquidation and payment, then the law gives the creditor his remedy by action to compel payment. This rule has been established, and is illustrated by many decisions in the courts of this state (McCulloch agt. The Mayor, &c., of Brooklyn, 23 Wend., 459; Cumming agt. The Mayor, &c., of Brooklyn, 11 Paige, 596; Beard agt. The City of Brooklyn, 31 Barb., 142 ; Ganson agt. The City of Buffalo, 1 Keyes, 454; Baldwin agt. The City of Oswego, 2 Keyes, 132). Here it must be admitted, the common council have been guilty of great delay and negligence, dr worse, in omitting to put the plaintiff’s claim in a proper shape to render it payable in the ordinary and usual way, after it was presented.

There was, in fact, nothing for them to do but to order its payment. The contract was between the plaintiff and that body, and the amount and time of payment fixed by the contract.

They had no right to disallow it (People agt. Supervisors of Delaware Co., 45 N. Y., 196), and it was their clear duty to make the order on which a warrant could have been drawn, when the claim was first presented. It had then been due over three months. After the debt was contracted there had been two annual tax levies, before this action was brought, and the common council though twice applied to, had neglected to act upon the claim, and to put it in a condition to be properly, paid from the city treasury. The corporation cannot thus keep its creditors at bay, and thus defend itself, on the ground that its own officers and agents have not done what it was their duty to do.

If it should be conceded that the plaintiff here might have proceeded by mandamus, to compel the common council to allow the claim, and make the necessary order for its payment, it would not follow that this action cannot be maintained. There is an exception to the general rule that a mandamus will not lie when the party has another remedy in- the case of corporations and ministerial officers.

They may be compelled to exercise their functions according to law by mandamus, even though the party has another remedy against them by action for neglect of duty (McCulloch agt. Mayor of Brooklyn, 23 Wend,, 461). We think, the action was properly brought, and that the judgment should be affirmed.

Sote.—The acts of the legislature relating to the city of Lockport are chapter 365, laws of 1865; chapter 809, laws of 1868; chapter 835, laws of 1869.  