In re Coombs — 256 A.D. 844

Majority

p. 844

In the Matter of the Application of Samuel M. Coombs, Jr., as Receiver of Walker Cement Products Co., Inc., Appellant, for a Peremptory Order of Mandamus Directed to Louis F. Edwards and Others, Constituting the Council of the City of Long Beach, Respondents.

Appeal by petitioner from an order denying his motion for a peremptory order of mandamus directing the members of the city council of Long Beach to include in the 1939 budget a sum sufficient to pay a judgment obtained by him, for building materials furnished to the city in 1932. Order reversed on the law and the facts, with twenty dollars costs and disbursements, and the motion granted in the exercise of discretion, with ten dollars costs. Petitioner was the only one who had reduced his claim to judgment in time for inclusion in the 1939 budget. In view of the improved financial condition of the city it was an improvident exercise of discretion to deny the petition to require the city to include petitioner’s judgment in the 1939 budget. Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.