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People ex rel. Dady v. Prendergast

Supreme Court of New York, Appellate Division

April 21, 1911

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL J. DADY, Respondent,
v.
WILLIAM A. PRENDERGAST, as Comptroller of the City of New York, Appellant.

Page 309

APPEAL by the defendant, William A. Prendergast, as comptroller, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of January, 1911, granting the relator's motion for a peremptory writ of mandamus.

COUNSEL

Terence Farley [R. Percy Chittenden and Archibald R. Watson with him on the brief], for the appellant.

George K. Jack [Jerry A. Wernberg with him on the brief], for the respondent.

Chase Mellen, for The T. A. Gillespie Company and others, as amici curiae.

CARR, J.:

The relator entered into a contract with the city of New York in August, 1905, to perform certain work for the city in the construction of its water works system in Nassau county. In November, 1905, a supplemental contract was made between the same parties for additional work on the same water supply system. While engaged in the performance of these contracts

Page 310

he received oral directions from the engineer of the department of water supply to do other work in connection with the testing of wells in certain pumping stations owned by the city and connecting said stations with the work then being done under his original and supplemental contracts, and also in the construction of a box for measuring coal for use at the pumping stations, and various other details. The work so ordered and done was estimated at the reasonable value of $2,298.77. For this work the city refused to pay on the ground that it did not become liable therefor, because there was no compliance with various provisions of the Greater New York charter which regulate and control the manner under which contracts could be entered into for the doing of the work in question. The contractor thereupon brought an action to recover the reasonable value of the work. On the trial it was stipulated that the reasonable value of the work so done, and of which the city got the benefit, was $2,298.77, but it was decided by the court that the plaintiff could not recover against the city because the charter requirements as to letting contracts for the performance of such work were entirely ignored, and judgment was entered accordingly, dismissing the plaintiff's complaint. (See Dady v. City of New York, 65 Misc. 382.) Some time thereafter the contractor presented a petition to the board of estimate and apportionment of the city of New York, setting forth in detail the facts above outlined and praying that said body may audit and allow his claim against the city of New York as one which it was equitable and proper for the city to pay. That body referred the petition to the comptroller of the city of New York for investigation and his opinion, as provided in section 246 of the Greater New York charter. The comptroller declined to give the claim any official consideration whatever, solely because he was advised by the corporation counsel that he had no power whatever to consider the same.

If section 246 of the Greater New York charter confers upon the comptroller a power in his discretion to investigate this claim and to report his opinion thereon, then should he refuse to exercise his official discretion solely on the mistaken ground that he has no legal power to exercise discretion in the premises, he may be compelled by a writ of mandamus to exercise his

Page 311

official discretion, though the result of such exercise may not be controlled by the court. That such may be done generally is too well settled to require any extended citation of authorities. This rule was applied in Matter of Kane v. McClellan (110 A.D. 44) to the board of estimate and apportionment of the city of New York, when it refused to exercise certain powers of audit and allowance conferred upon it by section 231 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) on the plea that said section was unconstitutional. The relator in this proceeding did apply for a writ of peremptory mandamus against the comptroller, requiring him to exercise his discretion on the relator's claim, and from the order directing the issuance of the writ this appeal has been taken to this court.

Section 246 of the Greater New York charter (Laws of 1901, chap. 466) was added to that instrument as a new section by chapter 601 of the Laws of 1907, and reads as follows: 'The board of estimate and apportionment may in its discretion inquire into, hear and determine any claim against the city of New York which has been certified to said board in writing by the comptroller as an illegal or invalid claim against the city, but which, notwithstanding, in his judgment it is equitable and proper for the city to pay in whole or in part, and if upon such inquiry the board by an unanimous vote determines that the city has received a benefit, and is justly and equitably obligated to pay such claim, and that the interests of the city will be best subserved by the payment or compromise thereof, it may authorize the comptroller to pay the claim, and the comptroller shall thereupon pay the claim in such amount as the board of estimate and apportionment shall so determine to be just, in full satisfaction of such claim, provided that the claimant shall fully release the city, upon any such payment, in such form as shall be approved by the corporation counsel. The provisions of this section shall not authorize the audit or payment of any ...


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