Knight v. Gerosa

4 A.D.2d 176, 164 N.Y.S.2d 254, 1957 N.Y. App. Div. LEXIS 4908

Opinion

Per Curiam.

The granting or denial of an application in the nature of mandamus rests largely in the discretion of the court, considering the strength of the position established by petitioner and the availability and adequacy of other remedies (Matter of Coombs v. Edwards, 280 N. Y. 361). In the instant case, payments were made to petitioner pursuant to orders for work performed and after complete clearance of all vouchers by all the agencies of the city concerned with and entitled to pass upon the payments. Discretion dictates, under the circumstances, that the city should not now be allowed to take a deduction for claimed overpayments from other amounts owing petitioner on other orders. We do not pass upon the possible right of the city to assert such a claim against petitioner, but think that the city should assume the burden of instituting and sustaining any action it is moved to take to recover the alleged overpayment and should not be permitted to shift the burden to petitioner by compelling petitioner to resort to a plenary action to recover the moneys withheld.

The order appealed from should be reversed and the application granted, with costs to petitioner.

Peck, P. J., Bbeitel, Rabin, Valente and Bastow, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to the petitioner, and the application granted. Settle order on notice.