People ex rel. Tenth National Bank v. Green

Headnote

Certificate of commissioner of new county court-house—when admissions of agent not admissible against the principal—Mandamus—disputed questions arising in proceedings by—how det&rmined.

This was an. application for a peremptory mandamus to compel the appellant to pay over to the relator the sum of $243,579.94, which amount the relator claimed to have advanced to the commissioners of the new county court-house, between the 29th day of April and the 3d day of September, 1871. In order to prove that such moneys had actually been advanced, a certificate to that effect, given by the said commissioners more than a month after the last payment had been made, was produced and read upon the motion. Upon an appeal from an order awarding a peremptory mandamus, held, that the certificate could not be received for the purpose of supporting the relator’s claim against the city and county. The admissions of an agent cannot be proven for the purpose of creating a liability against his principal, unless they are made so near the time of the transaction they relate to, as reasonably to be considered in some sense explanatory of it.^[1]

Where the right to a mandamus depends upon disputed facts, the questions arising thereon should [not be decided on conflicting affidavits, but issues of fact should be joined and tried according to the course of the common law.^[2]

Appeal from an order directing a peremptory mandamus to ■issue commanding the respondent to draw his warrant, in favor of the relator, for the sum of $44,000, with interest from July 2,1872.