People ex rel. Tenth National Bank v. Board of Apportionment

Headnote

Where, upon the return of an order to show cause why a mandamus should not issue, the relator takes no issue upon the allegations of the affidavits and papers presented by defendant, but proceeds to argument and asks for a peremptory writ; this is equivalent to a demurrer, i. e., it is an admission of the truth of those allegations, as statements of facts, but a denial of their sufficiency in law to prevent the issuing of the writ, and if the papers set forth facts showing the relator not entitled to the relief sought, the writ cannot be granted.

Where a party has a remedy by action, relief by mandamus will be denied.

This was an appeal from order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term directing the issuing of a writ of peremptory mandamus. (Reported below, 3 Hun, 11 .)

The order was as follows :

“ That a peremptory mandamus issue, commanding the board of apportionment of the city and county of New York forthwith to meet as such board of apportionment, and by concurrent vote to authorize the issue of stock of the county of New York, to be issued pursuant to the provisions of section 7 of an act entitled ‘An act to make provision for the local government of the city and county of New York,’ passed April 3, 1871, being chapter 583 of the Laws of 1871, and to take such action as will authorize the comptroller to issue such stock to such amount as will enable the comptroller of the city of New York to pay to the said Tenth National Bank of the city of New York the sum of $242,579.92, with interest thereon from the day of the date of the several advances of the several amounts composing said sum, being the claim and demand of said bank for balance due for advances made by said bank, prior to the 31st of December, 1871, to the commissioners of the new county court-house, the question of the liability of said comptroller to pay, and what amount, not being passed on this motion.”

The affidavits and papers read upon the motion, on the part of defendant, contained statements of facts showing that the relator had no legal claim against the city or county of New York for the amount of the debt sought to be recovered, or for any part thereof.

Held as above, and that if the relator had a valid claim, by virtue of chapter 304, section 27, Laws of 1874, he could maintain an action against the city thereon. The court citing, as to first proposition, 4 Wendell, 474.