Ex Parte Holmes Hutchinson v. Commissioners of the Canal Fund

Headnote

A mandamus does not lie to the commisioners of the coned fund, to allow a claim for costs expended by a canal engineer, in a suit prosecuted against him for alleged negligence in the discharge of his duty, in which suit the plaintiffs suffered a non pros. A discretion is entrusted to the commissioners, with the exercise of which this court will not interfere.

The relator was sued in his character of an engineer on the state canals, by S. & L. W. Holmes, for alleged negligence on his part in the enlargement of the Erie canal in the city of Utica, by means whereof the water from the canal forced its way into the cellar of a store occupied by the plaintiffs and damaged their property. The plaintiffs suffered judgment, as in case of nonsuit for not proceeding to trial, to be entered against them; and the relator not being able to collect the costs of the defence by process of execution against the plaintiffs, presented a claim to the commissioners of the canal fund for the allowance of the sum of $83.95^ [ *693 ] *the amount of such costs paid by him to his attorney, and that the same be paid to him from the canal fund, in pursuance of the provisions of the statute, 1 R. S. 181, § 14, &c. 2d ed. The commissioners refused to allow the claim, and the relator applied for a manda-, mus.