Emerson v. Schwab

Headnote

Buffalo (city of) — application by board of education for mandamus to compel council to issue bonds to raise money to erect school buildings denied.

Matter of Emerson v. Schwab, 206 App. Div. 647 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 7, 1923, which unanimously affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel the defendants to issue bonds of the city of Buffalo for the purpose of obtaining funds for the erection of certain school buildings. The basis of the application was a resolution of defendant council adopted in January, 1919, approving a resolution of the board of education recommending the purchase of sites and erection of twelve intermediate schools. The application was resisted by the respondents on the ground, first, that the time and method of issuing bonds was vested in the sound discretion of the council, and that no abuse of such discretion arose until there was a default

of some kind, i. e., until the city was called upon to pay an obligation and the funds were not forthcoming. Second, on the-ground that the project referred to in the resolution of 1919 had been abandoned and rescinded and another building program substituted for it, which substituted program had been carried out and the moneys intended to be devoted to the original program expended for such substituted program. Third, that the resolution relied upon by the petitioners was never legally adopted.