In re McDonald

The relators have made this motion for a peremptory writ of mandamus requiring the defendant, John Pauley, who is the state deputy inspector of gas meters for the city of Albany, to inspect a quantity of gas meters manufactured by them, and, if found correct, to seal, stamp, and mark them, as required by law. The relators allege that they notified the defendant that .they should require him to inspect and seal the meters in question, and that he called at their place of business, and declined to do so,—assigning, as reasons, that he had no seals with which to seal or mark them as required by law; that there was no provision in the law for providing him with seals; and that he could "not afford to furnish them himself. The relators also claim that the defendant has made no effort to procure such seals, and that, -by reason of his failure to make the inspection required by law, their business will be blocked, and they will be greatly injured financially. An affidavit-is presented, on behalf of the defendant, in which he denies that he ever declined to inspect the meters of the relators, and denies that he has not made an effort to procure seals. On the contrary, he alleges that he has applied to his superior officer for them, and has received his promise to furnish them, and he also alleges that he has inspected 334 meters for the relators since the 6th day of March, and claims that he is inspecting them as fast as possible, consistent with the proper discharge of his duty.

The statute provides for the appointment of an inspector of gas meters, whose duty it shall be, when required, to inspect, examine, prove, and ascertain the accuracy of gas meters, and, when found to be, or made, correct, to seal, stamp, or mark all such meters, and each of them, with some suitable device, which shall be recorded in the office of the secretary of state. Transportation Corporations Law (Laws 1890, c. 566) § 62. Under the law, deputy inspectors are provided for. The defendant, as the deputy residing at Albany, is authorized and required to discharge the same duties at his place of residence as is required of the inspector. Id. § 63. The relators have the right, under this law, to require the defendant to inspect their meters, and, when inspected, and found, or made, correct, to seal, stamp, or mark them, as required by law; and they also have the right, in case of his refusal, to a mandamus to compel him to perform the duty imposed upon him by law. People v. Daley, 37 Hun, 461 .

But it appears here, as above indicated, that the defendant, by his affidavit, raises an issue with reference to material facts alleged by the relators. It is where the applicant’s right to the mandamus depends only upon questions of law that a peremptory writ should issue. Code Civ. Proc. § 2070. Where the facts relied on by the relator are denied, as they are here, a peremptory writ ought not to issue. People v. St. Louis & S. F. R. Co., 47 Hun, 543 ; People v. Rome, W. & O. R. Co., 103 N. Y. 95 , 8 N.

Motion denied, without costs.