In re Freel

official to approve petitioners claim lor $82,068 and to make and ■sign a warrant for its payment. The proceeding is based upon a petition and numerous affidavits. On the 16th day of December, 1889, the city, acting through its mayor and its commissioner of -city works, entered into a contract with petitioner for the laying of water pipes and the construction of a reservoir. The work was to be done under the direction of the chief engineer of the department of city works. Amounts due or to become due under it were to be ascertained, determined and certified by the chief engineer. The work was completed upon August 21, 1893. Thirty monthly estimates, made as prescribed, have been paid.' The thirty-first monthly estimate and the thirty-second (called on its face the “ final monthly estimate ”) have been awaiting payment since Rovember, 1893. They constitute the petitioner’s claim herein, which "represents their total amount, less $30,000, paid by the city, on account of the contract, on July 1,1894. The learned justice presiding at the special term held that the petitioner made out a full case for a peremptory mandamus. That opinion we .share, and the proofs and allegations of petitioner were in no way ■drawn into controversy. In this case, however, several answering affidavits were filed, in which there was at least an attempt to ■controvert the main and material allegations of the petitioner. To these affidavits the petitioner filed eight affidavits in reply. If the application, after this complexion was put upon it, had seemed to the learned justice below to have presented issues of fact material to petitioner’s right, and fairly raised "within the rules of procedure and pleading in such cases, doubtless he- would, at most, have directed the issuance of an alternative writ. His examination of this branch of the case is peculiarly exhaustive, and his conclusion is that the denials are in such form, and are so •open to objection because of their general' and, indefinite character, that they must be disregarded. Ro adequate reason appears or is urged before us for overturning this exercise of discretion. 'This case, as presented, may not have been absolutely free from ■doubt; but it was easy for the city to present its case much more forcibly, if its contention is meritorious. The corporation counsel urges that at the special term the case was, treated as if an issue of fact was npon trial, and that it should have been treated as the •determination of the question whether an issue of fact was fairly raised. This cause of grievance would have been avoided by a different presentation of the city’s defenses, if those defenses are susceptible of different or better presentation. It appeared, upon the argument, that by no possibility could the city ever be damaged by the issue of a mandamus, for the reason that it bad a large sum (ten per cent.) on the contract price reserved, which would amply indemnify the city for any possible claim that the city could hereafter have arising out of the contract. There was, therefore, no possible defense suggested upon the merits, and no issue of fact raised.

If these views are correct, it follows that the judgment must be .affirmed. Affirmed, with costs.

Dykman, J., concurs; Brown. P. J., concurs in the result.