People ex rel. Dady v. Bennett — 18 A.D. 335

Majority

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The People of the State of New York ex rel. Michael J. Dady, Appellant, v. William V. B. Bennett, Supervisor of the Town of Gravesend, and Others, Respondents.

Headnote

Cost of improvements at Gravesend—failure of a claimant to submit his claim to the commission appointed under chapter 639 of 1895 — mandamus.

A claimant who has not voluntarily appeared before, and submitted to the jurisdiction of, the commission appointed by chapter 639 of the Laws of 1895, entitled " An act to provide for the payment of the cost of local improvements and bonds issued for the payment thereof in the late town of Gravesend, now in the thirty-first ward of the city of Brooklyn,” cannot take advantage of its provisions to compel payment of his claim under a contract for grading an avenue in said town.

Appeal by the relator, Michael J. Dady, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the. county of Kings on the 12th day of March, 1897, denying his application for a peremptory writ of mandamus commanding the defendants, as members of the commission constituted by chapter 639' of the Laws of 1895, to pay the amount alleged to be due to the relator upon a contract for constructing and grading Neptune avenue, in the town of Gravesend, or to take proceedings for the issue of bonds on account of said contract.

Charles F. Brown, for the appellant.

Alfred E. Mudge, for the respondents.

We think the learned judge at Special Term was right in holding that chapter 639 of the Laws of 1895 is applicable only to such claimants as shall voluntarily appear before the commission therein designated and submit to its jurisdiction; and hence that the relator could obtain no relief under that statute, inasmuch as he had not consented that the commission should adjudicate upon his claim.

His application was doubtless due. to the view which we expressed in regard to the scope, and operation of the act of 1895 in The People ex rel. Dady v. Supervisor ( 6 App. Div. 225 ). The argu

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ment is now pressed upon us that the construction then given to the statute would make it impair the obligation, of tlie contract which the relator is seeking to enforce; and there seems much force in this suggestion, which was not made, and, perhaps, could not have been anticipated, by counsel in the former case. ■ At all events, the point certainly escaped our attention and was not then considered. On the present appeal it is clear that the order of the Special Term should be affirmed; but it is also equally clear that the relator is entitled to a reconsideration by this court of the question upon which the reversal in the case of People ex rel. Dady v. Supervisor was based. It may be that the reversal can be sustained on other points, but the decision was placed solely on the substitution of a sufficient scheme of payment by the act of 1895. The relator may seek a further heai'ing on that question, by renewing his application for a mandamus against the supervisor of Gravesend, or in such other manner as he may be advised; and the order of affirmance in the case at bar will be without prejudice to such proceedings on his part. ,

Order affirmed, but with leave to the relator to renew his application for a mandamus against the supervisor of Gravesend or take such other proceedings as he may be advised to take for the like purpose; no costs of this appeal.

All concurred.

Order affirmed, but with leave to the relator to renew his application for a mandamus against the supervisor of Gravesend or take ■such other proceedings as- he may be advised to take for the like purpose; no costs of this appeal.