People ex rel. Cunningham v. Brennan

18 Abb. Pr. 100

Opinion

J. F. Barnard, J.

The Common Council may waive, I think, the time for the performance of a contract. It would be a hard rule of construction which would prevent a party to a contract from waiving a penalty incurred by non-performance at the day named, no matter how controlling the reason and excuse may be for non-performance.

The fatal defect to this writ is that the bill has not been audited by the “ Department of Finances.” This department must certify the claim to the comptroller. Until that is done the comptroller’s duty is plain and imperative. The Common Council cannot audit and allow claims. The Finance Department only can. If they refuse to" allow and audit a just claim, they are the proper parties to proceed against by mandamus.

Motion to dismiss writ of mandamus granted, with $10 costs.