Commissioners v. Northport Water Works Co.

240 A.D. 1005

Opinion

Order dismissing alternative mandamus order reversed upon the law and the facts, with costs to the appellant to abide the event, and a new trial granted. The conclusion reached by the trial court, that the respondent was financially unable to comply with the requirements of the fire district for an extension of the fire hydrant supply, is not supported by evidence of a satisfactory character. The conclusion that the demand was improper in requiring the installation of four hydrants at locations outside the fire district was erroneous. Even if the evidence established such location of the said four hydrants — and the weight of evidence does not seem to point to that result — it was the duty of the court to mould the writ “ according to the just rights of all the parties.” (People ex rel. Keene v. Supervisors, 142 N. Y. 271, at p. 278.) We are of the further opinion that the respondent may not demand the payment of the alleged debt as a condition to the issuance of the mandamus order. The debt was disputed, and the creditor has its common-law remedy. We are also of opinion that conditions obtaining at the time of the retrial, herein directed, shall be the guide for the relief sought, and not conditions as they existed on the date of the demand in March, 1932. Findings of fact numbered 5, 6, 7, 8, 9, 10, 12, 13 and 14 are reversed. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur. [146 Misc. 486.]