People ex rel. Wood v. Connolly — 2 Abb. Pr. 315

Majority

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THE PEOPLE, on the relation of WOOD, against CONNOLLY.

Supreme Court, First District; At Chambers,

February, 1867.

Headnote

Mandamus.—Municipal Coepoeation.—Abatement of Actions.

II seems, that a mandamus may be granted to compel the clerk of a municipal corporation to execute a contract under the seal of the corporation.

A suit brought by a public officer, as such, is abated by his going out of office; but the abatement is but a temporary disability, and if there is any successor the action might be revived. Hence, an injunction existing in such an action is not to be deemed as no longer in force, when the plaintiff goes out of the office, but it must be set aside.

A mandamus is not to be granted against the city of New York to compel the payment of a claim, unless it clearly appears that there is money in the treasury appropriated to the purpose. Otherwise the remedy must be by action.

Application for mandamus.

In December, 1865, the common council of the city of Hew York, by a resolution approved by the mayor, directed the comptroller of the city, the defendant in this case, to execute a lease of premises in Hassau street, belonging to Mr. Wood, the relator, for the sum of $18,000, per annum, for a term of years, for the use of officers of the city corporation. The relator accepted the terms fixed by the resolution, and prepared leases which he procured to be approved by the corporation counsel, and tendered them to the comptroller for execution. He notified that officer, at the same time, that he should consider the continuance of occupancy by the city officers as an acceptance of the lease. The comptroller declined to execute the lease, although the officers of the corpora

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tion, who were in possession of the premises, continued to occupy them.'

In December, 1866, Mr. Christopher Pullman, who was then a member of the board of common council of the city, brought an action against the mayor, the comptroller and the relator in these proceedings, to enjoin them from executing the lease in question. An injunction was obtained and served, and so far as appeared, had not been vacated at the time of the present proceeding.

On the 8th of January, 1866, the mayor of the city commenced an action in the supreme court against the comptroller, alleging that the resolution under which this lease had been authorized by the common council was corruptly passed, and praying that it be set aside and declared void.

Mr. Wood, the lessor, now applied to the court for a mandamus against the comptroller, to compel the execution of the_ lease and payment of the rent for the three quarters which had elapsed.

William, F. Allen,

for the relator, insisted that the expiration of the term of' office of Mr. Pullman, the plaintiff in the injunction suit, which had occurred since he obtained an injunction against an execution of this lease, had the effect to render the injunction of no further force.

Aaron J. Vanderpoel, for the respondent, the comptroller,—

Objected that the mandamus did not allege that the claim had not been audited, as was required by a recent statute,’and that a mandamus was not the proper remedy to compel the payment of a debt by a municipal corporation; the remedy, if any, in this case must be by action.

1. T. Williams, for the corporation of the city.

I It is alleged in the return and admitted, that an injunction was obtained by Pullman, forbiding the comptroller and his successors from executing the laws in question. The statute, giving such officer the right to sue, must be considered as not limited to his term of office. In order to give the statute effect it must be construed as by implication, giving him the right to continue the action after the expiration of his. term of office. What would entirely abate a suit at law, will, in equity, have only the effect of suspending the proceedings, which a bill of

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revivor ünder the old practice, and, perhaps, merely a motion under the new, will remove, permitting the parties' to proceed as before. (Mitf. Eq. Pl., 57; Story's Eq. Pl., § 354.) The death of the plaintiff in an equity suit would not have been the effect to dissolve an injunction (Eden on Inj., 158).

II. The return sets forth the pending of an action in this court in equity, brought by the corporation of the city of Mew York against him as comptroller, to set aside the resolution in question and declare it null and void, and to perpetually restrain and enjoin the respondent from executing the lease or the payment of any moneys as rent for the premises in question, on the ground that the same was fraudulently procured and approved. If anything be settled, it is settled past dispute that when a court of competent jurisdiction has got jurisdiction of any matter of dispute, such jurisdiction is exclusive as against all recognizance of such matter by any court whatever, in any suit or proceedings which may be thereafter instituted. To this principle it is believed no single exception can be found in the annals of jurisprudence. So universal is it that it prevails not only as a principle of law, but it is adopted by the supreme court of the UnitedStates as aprinciple of comity (Taylor v. Carryl, 20 How., 583 ). A disregard to this rule of jurisprudence, would in every imaginable case be most injurious as leading not only to a conflict of jurisdiction, but to the most dire and inextricable confusion. Mo case will illustrate this better than the present. The corporation files a bill to set aside what is claimed to be a contract, for fraud. Pending the action, the defendant, upon a notice of eight days, brings the complainant before a judge at chambers, demanding an execution of the contract and payment thereunder. The relief the corporation ask is attainable only in a suit in equity. It is a bill filed to set aside a pretended contract for fraud. It may be deprived of a trial in that court by the summary action of its antagonist, and confined to the scanty relief or no relief attainable upon the return of an alternative writ of mandamus. Suppose the relief here asked by the relator were to be granted, he may plead these proceedings puis darien continuance in that action as a flat bar, and thus deprive the corporation of a trial-in that court where alone such wrongs as it complains of are cognizable and returnable. The human mind shrinks from

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such a spectacle of perverted justice. That the doctrine here contended for is applicable as well in a case of an alternative mandamus as in other actions or proceedings is settled in the case of Rex v. De Hay, 4 Burr., 2295.

III. There being no statute or ordinance imposing upon the comptroller the duty of renewing leases, or any similar duty, he could not be compelled, even at the suit of the common council, or by the corporation itself, to do the acts by the alternative writ required, much less can he be compelled to do so by an individual or mere stranger, to whom he owes no duty or allegiance whatever. Ho such duty is imposed upon the respondent by law or ordinance. The only allusions to the subject that in any way bear upon it are, 1st, section 10, chapter 3, of the Revised Ordinances, which is as follows: “ He” (the comptroller) “ shall cause all grants, leases, and counterparts of leases, or deeds executed by the corporation to be recorded in the proper books to be kept in his office.” Thereby clearly implying that the duty of executing rests with the corporation or elsewhere than with himself. His duty in reference to leases is confined to the recording them in proper books to be kept in his office. Again, section 36 of the act of 1857, provides that “ the clerk of the common council shall keep the seals of the city, and his signature shall be necessary to all leases, grants, and other documents, as under existing laws.” From which it appears that the comptroller has no power to obey the mandate of.the alternative writ, namely, to “ execute and deliver” the lease demanded. Thus a portion at least of such duty is by this express statute confided to another functionary. If the comptroller is bound by law, by any general principle of law, to do the work assigned him by the resolution in question, then by the same general principle of law, he is bound to do whatever the common council may require him to do. But were it otherwise, and were it true that the respondent is bound to do every and all things which the common council by resolution direct him to do, yet how could the relator take advantage of a duty not enjoined by law, not due to him, but simply existing between the common council on the one side and the respondent on the other ? If such a duty exists as between the present comptroller and the present board of the common council, how can it be pretended that the pres

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ent comptroller owes any such duty to a former board, now extinct % Is there anything to show that the present board desire the comptroller to execute such a lease ? This question was raised in the case of People v. Brennan ( 39 Barb., 522 ), and it was then claimed that the presumption was that the proceeding was with the consent and sanction of the corporation, and it was virtually conceded if anything to the contrary appeared it would be fatal to the application.

IY. The contract of lease is incomplete—something must be done before it is perfect—and so long as that is the case a mandamus will not lie to complete or execute it, or pay out moneys under the terms of it. The proposition of law here stated was conceded on the argument, and the authorities to sustain it are abundant. It has been repeatedly held that contracts of this kind are inchoate, and that a mandamus would not issue to compel an officer to execute them (People v. Canal Board, 13 Barb., 432 , in which Mr. Justice Cady cites and reviews a large number of cases).

V. If the contract be complete and not inchoate and incomplete, the relator does not need the aid of a writ of mandamus, for he has his action at law for the rent of the premises. 1. If there be any other remedy a mandamus will not be granted ( 2 Cow., 444 ; 18 Wend., 575 ; 12 Johns., 414 ; 1 Cow., 423 ; 21 Wend., 25 ; 6 Hill, 243 , 244; 2 Hill, 45 ; 1 Wend., 318 ; 5 Hill, 616 , 629). 2. If the contract be inchoate and not complete and perfect, a mandamus will not lie to compel an officer to complete it. See cases above cited, and also 3 Cal. R., 167; 1 Clarke (Iowa), 179; 11 How. (U. S), 272. 3. If there be a perfect and complete contract of lease, an action will lie for the rent, and there is no reason why a mandamus should not issue at the suit of any other person against any other corporation or person for the payment of any other claim, as well as for the payment of this claim for rent of the premises in question.

VI. The statute provides as follows: “ All moneys drawn from the city treasury shall be upon vouchers for the expenditure thereof, examined and allowed by the auditor, and approved by the comptroller and filed in his office.” (Act of 1857, § 22.) There is no pretense that any voucher for the expenditure now sought to be obtained by peremptory manda

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mus has ever been examined or allowed by the auditor, nor that any such voucher has been approved by the comptroller or filed in his office. The warrant now demanded cannot be drawn without clearly contravening the provisions of this statute. It may here be observed that, if any doubt could exist as to the drawing of a warrant by the comptroller being an act upon which he has a discretion to be exercised, it would be put to test by this provision of the statute; for the words “ approved by the comptroller” clearly recognize his discretionary powers in the matter. It will not be contended by the counsel for the relator that an act concerning which the officer has a discretion can be compelled by mandamus. Again, the 15th section of the third chapter of the Revised Ordinances provides as follows: “ But no such warz-ant shall be drawn unles^ the sum specified therein is embraced in an appropriation previously made for thatpui'pose by the common council.” Before the warrant now demanded can be drawn by the comptroller, the common council must have, by a vote of both of its branches appropriated the sum claimed to the purpose of the payment or the claim in question, or he will not only make himself personally liable for the amount so dz-awn, but incur the penalties of a misdemeanor for the act. The court may be here reminded that if the relator fails upon any one branch of his claim in the alternate writ, he must fail in all (Hill, 50, 55; 18 How., 152 ). The reason of the rule is that the peremptory writ must follow the alternative wzit, and it is not true, as was maintained at the argument, that the Code has obviated this objection, and allowed the party to strike out and amend, as in other cases. The Code nowhere alludes to a wz-it of mandamus. It has z’epeatedly been held that it does not in any of its provisions eznbrace, regulate or refer to proceedings of that character ( 16 How., 4 ; 19 Barb., 657 ; 7 How., 124 ).

VII. Such portions of the writ as are not admitted by the return either expressly or tacitly, must be taken to be untrue, and for the purposes of this argument may be deemed to be stricken out. In the absence, then, of the allegatioizs that may be deemed so stricken out, there is not enough upon the face of the writ to establish a claim to the peremptory writ aside even from all the affirmative matter set up in the return.

The relator appears, from the facts stated in the alternative writ, and the answer, to be entitled to have his lease executed by the defendant. An ordinance has been duly passed, directing its execution by the defendant, who is their subordinate officer and agent. The clerk who has the custody of the seal must use it when those who are authorized call for it. He cannot prevent the comptroller from carrying into effect an ordinance which necessarily required the impress of the seal. But there is an insurmountable objection to the writ, existing at present.

The comptroller is under an injunction from this court, at the suit of Pullman, an alderman at the time the suit was commenced, and authorized by law to maintain such an action in his own name—forbidding him to execute this lease, or to pay the rent. Pullman has now ceased to be an alderman, and the suit has, I think, abated from that cause. But abatement is but a temporary disability, and, if there is any successor, might be revived. It is doubtful whether, if there is any legal successor of an alderman, he would allow the suit to be revived in his name' but the suit and injunction cannot for' that cause be denied an existence. The injunction must be removed before the motion can be granted. This court cannot require the defendant to violate an injunction. If the suit is legally defunct, it only requires an application to this court to remove that barrier to the relief sought. Due observance of the process of injunction compels this court to respect its provisions until it has been regularly terminated in its authority.

The application for the mandamus, as it respects the payment of the rent, depends on other principles.It is not made to appear, as it must before the peremptory writ can be allowed, that there is money in the treasury belonging to the relator. Unless that fact clearly and affirmatively appear, he must take the customary remedy by action.

The application must be denied without prejudice to a renewal in case of the removal of these grounds of objection.