People ex rel. Guidet v. Green , 66 Barb. 630 ( 1873 )

Ingraham, P. J.

It has been the uniform course of decision in this court, for some time past, that a party has no right to a mandamus to compel the payment of a money demand on contract* where a proper remedy exists by action. More especially is such a rule proper where the facts upon which the claim is based are disputed.

In the present case the comptroller denies tlie validity of the contract, charges that it was illegally made, and that the prices charged are excessive. A reference, or an issue, would be necessary to try these questions, if it were proper to do so in this case; and they would be much better tried in an action against the city, upon the contract.

There are doubtless some cases of claims against the city where a mandamus is proper—as where it is asked by reason of the refusal of some officer to do his part of the duty necessary to enable the claimant to obtain his pay, if the claim is not disputed; or where some duty is to be performed, other than the mere payment of a debt; or where the remedy by action is inappropriate. This case does not come within any of those exceptions.

The order should be affirmed.

Brady, J.

The specific duty to be performed by the comptroller is to borrow, from time to time, by the issue of assessment bonds, such sum as shall be necessary to pay the expenses incurred by a contract such as contemplated by the statute; but the obligation to be discharged in the manner directed, must be legally incurred. Whether it was or not the city has the right to inquire, and to secure such an investigation, the rule against the allowance of a mandamus is invoked. Neither in England nor in this state has a mandamus been allowed where there was a remedy by action and a reasonable doubt „as to the validity of the claim, or any conclusion that it should be examined by due proceas of law. If the duty be specifically created, and the obligation indisputable, it may be otherwise. Chief Justice Ingraham has stated the -rule in this state, and it has been applied in several proceedings of this character, against the respondent.

[First Department, General Term, at New York, November 3, 1873.

Order affirmed.

Ingraham and Brady, Justices.]