In re D. McDonald & Co.

16 Misc. 304, 39 N.Y.S. 367

• Court: New York Supreme Court
• Decided: March 15, 1896
• Status: Published

Opinion

Chester, J.

The relators have made this motion for. a peremptory Avrit of mandamus requiring the defendant John Pauley, who is the state deputy inspector of gas meters for the city of Albany, to inspect a quantity of gas meters manufactured by them, and if. found correct, to seal, stamp and mark them as required by law.

The relators allege that they notified the defendant that they should require him to inspect and seal the meters in question,, and that he called at their place of business and declined to do-so, assigning as reasons that he had no seals with which to seal or mark them as required by law; that there, rvas no provision in the law for providing him with seals, and that he could not afford to furnish them himself. The re.lators also claim that the defendant has made no effort to procure such seals, and that by reason of his failure to make the inspection required by law their bfisiness will be blocked and they will be greatly injured financially.

An affidavit is presented on behalf of the defendant, in which he denies that he ever declined to inspect the meters of the relators and denies that he has not made an effort to procure seals. On the -contrary, he alleges that he has applied to his superior officer for them and has received his promise to furnish them, and he also alleges that he has inspected 334 meters for the relators since the 6th day of March, and claims that he is inspecting them as-fast as possible, consistent Avith the proper discharge of his duty.

The statute provides for the appointment of an inspector of gas meters, whose duty it shall .be, when required, to inspect, examine, prove and ascertain the accuracy of gas meters, and' when found to be or made correct, to seal, stamp or mark all such meters, and each of them, with some suitable deAdce, which shall be recorded in the office of the secretary of state. The Transportation Corporation Law, § 62.

Under the law, deputy inspectors are provided for. The defendant, as' the deputy residing at Albany, is authorized and required to discharge the same duties at his place of residence as is required of the inspector. Id., § 63.

The relators have the right tinder ■ these. laws to -require the defendant to inspect their meters, and when inspected and found or made correct, to . seal, stamp or mark them as required by law, and they also have the right, in case of his refusal, to a mandamus to compel him to perform the duty imposed upon him by law. People ex rel. Boltzer v. Daley, 37 Hun, 461.

But it appears here, as above indicated, that the defendant, by ¡his affidavit, raises an issue with reference to material facts alleged !by the relators." It is where the applicant’s right to the. man- _ damns ■ depends- only upon questions of law- that a peremptory writ should issue. Code Civ. Pro., § 2070.

Where the facts relied on ¡by the relator are denied, as they .are here, a peremptory writ ought not to issue. " People ex rel. Del Mar v. St L. & S. F. R. Co., 47 Hun, 543; People v. R., W. & O. R. R. Co., 103 N. Y. 95.

As the failure in this case to inspect the meters promptly, when required by the relators, appears to have been caused in part at least by the delay in procuring seals, and as-1 think the law clearly-imposes the duty upon the defendant to seal or Otherwise stamp or mark meters which he finds correct upon, inspection, no costs should be allowed- upon the denial of relators’ motion.

Motion denied, without costs.