Buffalo Dump Truck Owners Ass'n v. Condon

Appellate Division of the Supreme Court of New York

Buffalo Dump Truck Owners Ass'n v. Condon

232 A.D. 273, 249 N.Y.S. 602, 1931 N.Y. App. Div. LEXIS 13787

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1931

StatusPublished

Cited by3 cases

This text of 232 A.D. 273 (Buffalo Dump Truck Owners Ass'n v. Condon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buffalo Dump Truck Owners Ass'n v. Condon, 232 A.D. 273, 249 N.Y.S. 602, 1931 N.Y. App. Div. LEXIS 13787 (N.Y. Ct. App. 1931).

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Opinion

Per Curiam.

Even if mandamus were the proper remedy under the facts here, the procedure followed would be open to serious objections. No “ moneys ” were held “ in trust ” for petitioner by Condon, chief clerk, Division of Highways. The moneys due on the contract were held by the State. Nor was the check, which had been drawn but not delivered, in Condon’s possession as trustee for petitioner. It was in his possession merely in connection with his routine clerical duties. His possession was the possession of the Division of Highways of the Department of Public Works. If there [274]*274Was any duty here, performance of which could be compelled by mandamus, it rested on the head of the department, who is not a party. Moreover, the interest of the petitioner is not very clear, since the assignment ran to Spencer Cleveland and the check was drawn to his order. Finally, the facts upon which the controversy turns, as alleged in the petition, took place in Albany county. It seems, therefore, that the application should have been made in the third judicial district. (Civ. Prac. Act, §§ 1317, 1334.)

We are of the opinion, however, that mandamus is doubtfully applicable under the facts here. The State admits that certain moneys are due and owing by it on a highway contract. Conflicting claims thereto have been made. Until that conflict has been settled or determined, the duty to pay out is inchoate. While there is a possibility that if the procedural steps herein had been properly taken, the rival claimants might have been brought in by interpleader (Matter of Bohnet v. Mayor, etc., 150 N. Y. 279; 2 Fiero Particular Actions & Proceedings [4th ed.], 1959), it is thought that the proper remedy is an action under the precedent of Durant v. Whedon (201 App. Div. 196) or possibly a proceeding in the Court of Claims. (See Anderson v. Hayes Const. Co., 243 N. Y. 140.)

The order of peremptory mandamus should be reversed on the law, with costs, and the petition dismissed, with ten dollars costs and disbursements.

All concur. Present — Seaes, P. J., Ceottch, Tayloe, Thompson and Cbosby, JJ.

Order reversed on the law, with costs, and motion denied, with ten dollars costs.

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Per Curiam.

Even if mandamus were the proper remedy under the facts here, the procedure followed would be open to serious objections. No “ moneys ” were held “ in trust ” for petitioner by Condon, chief clerk, Division of Highways. The moneys due on the contract were held by the State. Nor was the check, which had been drawn but not delivered, in Condon’s possession as trustee for petitioner. It was in his possession merely in connection with his routine clerical duties. His possession was the possession of the Division of Highways of the Department of Public Works. If there [274]*274Was any duty here, performance of which could be compelled by mandamus, it rested on the head of the department, who is not a party. Moreover, the interest of the petitioner is not very clear, since the assignment ran to Spencer Cleveland and the check was drawn to his order. Finally, the facts upon which the controversy turns, as alleged in the petition, took place in Albany county. It seems, therefore, that the application should have been made in the third judicial district. (Civ. Prac. Act, §§ 1317, 1334.)

We are of the opinion, however, that mandamus is doubtfully applicable under the facts here. The State admits that certain moneys are due and owing by it on a highway contract. Conflicting claims thereto have been made. Until that conflict has been settled or determined, the duty to pay out is inchoate. While there is a possibility that if the procedural steps herein had been properly taken, the rival claimants might have been brought in by interpleader (Matter of Bohnet v. Mayor, etc., 150 N. Y. 279; 2 Fiero Particular Actions & Proceedings [4th ed.], 1959), it is thought that the proper remedy is an action under the precedent of Durant v. Whedon (201 App. Div. 196) or possibly a proceeding in the Court of Claims. (See Anderson v. Hayes Const. Co., 243 N. Y. 140.)

The order of peremptory mandamus should be reversed on the law, with costs, and the petition dismissed, with ten dollars costs and disbursements.

All concur. Present — Seaes, P. J., Ceottch, Tayloe, Thompson and Cbosby, JJ.

Order reversed on the law, with costs, and motion denied, with ten dollars costs.

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232 A.D. 273, 249 N.Y.S. 602, 1931 N.Y. App. Div. LEXIS 13787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buffalo-dump-truck-owners-assn-v-condon-nyappdiv-1931.

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