People ex rel. Wallace v. Abbott — 10 N.Y. St. Rep. 399

Majority

p. 399

People ex rel. Fisk Wallace, Resp’ts, v. Thomas Abbott et al., as trustees of school district, etc., in the town of Gravesend, App’lts.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Practice—Mandamus—Remedy by action not a bar.

The fact that there is a remedy by action is not a bar to the granting of a writ of mandamus to compel the performance of a duty.

3. Costs in action against school trustees—Code Civil Pro., § 3344.

By section 3344, Code Civil Procedure, costs can be given in actions against school trustees for acts or omissions, which could he determined upon appeal to the state superintendent.

3, Same—Where can be questioned.

If the trial court determined the question of costs erroneously it cannot be questioned either upon an execution or upon an application for mandamus.

Appeal from an order granting a writ of alternative mandamus directing the defendants to pay money.

Plaintiff and respondent obtained a judgment in the county court of Bungs county by entry therein, on the order of the general term, granting the same, on motion of the respondent. The jury found for the respondent for a claim for an unpaid balance, and due for teacher’s wages in school district No. 6, Gravesend. The county judge set aside the verdict of the jury, and granted a new trial to the defendants, the trustees.

After a lapse of several months, the plaintiff made a case on appeal and the general term reversed the county judge’s order granting a new trial, and judgment was ordered for the plaintiff. A motion for leave to go to the court of appeals was denied, and then the plaintiff entered his costs of.

p. 400

and in the supreme court, in his judgment, and with the costs in the county court, and as a judgment of the county court. On December 17, 1885, a motion was made to set this aside as irregularly entered, before the county judge, on this ground solely, and denied on 17th April, 1886.

So the judgment as so entered by the plaintiff of costs and disbursements in the supreme court, with those of the county court, stands, no appeal having been taken from the county judge’s order by the defendants, trustees, as the county judge, on the 1st day of April, 1886, had granted a, certificate, under the law of good faith, by the public officers as trustees in defending the action, and thus saving to the taxpayers the costs in the suit, and preventing by law the recovery thereof in any form or manner.

The judgment was enforced by execution, but no order supplementary to execution was issued, no sale of the school, effects was made, no attempt was made to recover of the trustees in any other form, until this application was made for a mandamus, and granted by Mr. Justice Cullen.

Plaintiff alleged in the motion papers that the defendants, as trustees, had money to pay the judgment, and this, is not now denied.

Tunis O. Bergen, for resp’ts; T. C. Cronin, for app’lts.

While it is true that an execution may issued against the property of school trustees to be collected out of their individual property, it is not the only remedy of the judgment creditors.

The debt is against the school district, and no inability upon the part of school trustees to pay individually will absolve the district from its debt.

The defendants are a board, or a quasi corporation, and as such have the money of the district in their hands.

No question is made as to the amount being sufficient and as to the fund being applicable to pay the debt.

The board has no excuse to offer upon this branch of the case why it does not do its duty to the relator.

The facts, therefore, establish mandamus to be the proper remedy. Remedy by action is not a bar to the granting of a writ of mandamus to compel the performance of a duty.

The judgment is final as to the application. Costs were granted by the judgment and cannot be assailed collaterally.

By section 3244, Code, costs can be be given in actions against school trustees for acts or omissions which could be determined upon appeal to the state superintendent. If the trial court determined the question erroneously, it cannot be questioned either upon an execution or upon an

p. 401

application for mandamus. It appears that the superintendent of public instruction declined to take the question.

There was an issue of fact as to whether the trustee had paid for a year, and the relator was not a teacher after his discharge.

The order should be affirmed, with costs and disbursements.

Bykmán and Pratt, JJ., concur.