Majority
p. 598The People of the State of New York ex rel. The Fidelity and Casualty Company of New York, Appellant, v. Edwin W. Joslin, Mayor of the City of Watervliet, et al., Respondents. (Argued October 3, 1919; decided October 21, 1919.)
Headnote
People ex rel. Fidelity & Casualty Co. of N. Y. v. Joslin, 188 App. Div. 405 , affirmed.Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered
p. 599
August 26, 1919, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendants to pay to relator a sum alleged to be due on a contract for the improvement of the water system of the city of Watervliet, which sum, it was admitted, had been raised by taxation and was in the hands of the city chamberlain. The Appellate Division held as matter of law that mandamus would not lie for the reasons: First, that the water board had adopted a resolution charging the contractor with damages for delay in an amount greater than the sum due and declaring said sum forfeited, and, second, that the claim had not been audited in accordance with the provisions of a new city charter which went into effect after relator’s final estimate had been made and delivered.
Charles B. Sullivan and Edwin A. Jones for appellant.
Chester Wood, Corporation Counsel, for respondents.
Order affirmed, with costs; no opinion.
Concur: Hiscock, Ch. J., Chase, Cardozo, Pound, McLaughlin and Andrews, JJ. Absent: Hogan, J.