In the Matter of THE PEOPLE OF THE STATE OF NEW YORK ex rel. CAREY CONSTRUCTION COMPANY OF ROME, N.Y. , Respondent,
RICHARD J. SMITH and Others, Constituting the Common Council of the City of Rome, N.Y. , and Others, Respondents, Impleaded with HARVEY S. BEDELL and Others, Constituting the Board of Water and Sewer Commissioners of the City of Rome, New York, Appellants.
APPEAL by the defendants, Harvey S. Bedell and others, constituting the board of water and sewer commissioners of the city of Rome, N.Y. , from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 24th day of October, 1911, granting a peremptory writ of mandamus directing the appellants to pay a judgment recovered by the relator against the city of Rome.
Theodore E. Hancock, for the appellants.
W. E. Scripture, for the relator, respondent.
M. J. Larkin and John E. Mason, for city and common council, respondents.
The relator, the Carey Construction Company, as contractor, constructed a system of municipal water supply for the city of Rome under a contract with the board of water and sewer commissioners of that city. After finishing the work it presented to the board of water and sewer commissioners a claim for extras beyond the contract price of $44,238.29. The board of water and sewer commissioners rejected and refused to allow this claim, whereupon, in accordance with the provisions of the city charter, the matter came before the board of audit, consisting of the mayor, the president of the common council, and the presidents of the five administrative boards. The board of audit on February 20, 1911, audited and allowed the claim at $18,847.04 and by resolution directed the board of water and sewer commissioners to issue their warrant for the amount. On March 7, 1911, relator demanded a warrant for such sum from said board, which refused by formal resolution to pay the audit or any part thereof. Thereupon relator applied to the court at Special Term for a peremptory writ of mandamus
against the board of water and sewer commissioners, which application was denied on the ground, as claimed by relator, that it had an adequate remedy at law; whereupon, and on April 29, 1911, relator began an action in this court against the city of Rome to recover said sum of $18,847.04, with interest from February 20, 1911, upon the audit of its said claim. The common council after some investigation on the subject, and after hearing the board of water and sewer commissioners in opposition to payment of the claim, adopted a resolution recommending a settlement of the action and directing the board of water and sewer commissioners to issue a warrant in favor of relator for the sum of $18,847.04, with interest from February 20, 1911, to be paid in full settlement and discontinuance of said action. Copy of this resolution was received by the board of water and sewer commissioners on or about July 13, 1911, and on or about August 1, 1911, said board by resolution refused to comply with the resolution of the common council. No defense having been interposed by the city of Rome in said action, relator on August 3, 1911, duly recovered judgment therein against the city of Rome for $19,379.62, being the amount of said claim as audited, with interest and costs, and said judgment was duly docketed and entered in Oneida county clerk's office on that day, and on August 16, 1911, certified copy of said judgment was filed with the city clerk of the city, together with a notice addressed to the common council of the city of Rome of the entry of said judgment in behalf of relator and demanding payment of the same. On September 18, 1911, the common council adopted a resolution denying relator's application for the payment of said judgment and refusing to pay the same, whereupon relator brought on this application for a peremptory writ of mandamus against the board of water and sewer commissioners of the city of Rome and its common council, and after hearing at Special Term the relator has been awarded the writ as against the board of water and sewer commissioners alone.
It is stated in the moving affidavits that at the time this proceeding was instituted the general city fund of the city of Rome after defraying the ordinary expenses of the city payable from that fund was more than sufficient to pay said judgment,
also that at the time the common council directed the board of water and sewer commissioners on July 12, 1911, to pay relator's claim as audited, and at the time this proceeding was begun said board of water and sewer commissioners had and have more than sufficient funds properly applicable to the payment of said sum.
Relator's application for the writ was opposed upon the affidavit of one Harvey S. Bedell, chairman of the board of water and sewer commissioners, alleging facts tending to show that the claim of relator was not a just or legal claim, that it arose out of extra work and deviations from the contract and that certain provisions of the contract and specifications were not complied with by relator in respect to having written orders for the work and in other respects not important to be noted here in our view of the case. They are facts, however, which might have afforded the city of Rome a legal defense to relator's action had such defense been interposed. Mr. Bedell does not deny the statement in the moving affidavits that the board has funds sufficient to pay relator's judgment which may be properly so applied, but he does say that at the time the proceeding was instituted the board did not have and does not have funds enough arising from water bonds or from the sale thereof to pay said judgment, but that there is more than enough of the general city funds to pay the same, and, 'upon information and belief, that said city of Rome has sufficient property not devoted to public use which may be taken and sold to satisfy said judgment.' An affidavit of Mr. McMaster, the city clerk, was also presented in opposition, which states that on October 1, 1911, there was a balance in the general city fund of $47,383.50; that the same consists of taxes levied and collected upon the taxable property of the entire city of Rome, including property ...