People ex rel. Dinsmore v. Gilroy

31 N.Y.S. 781, 82 Hun 508, 89 N.Y. Sup. Ct. 508, 64 N.Y. St. Rep. 485

• Court: New York Supreme Court
• Decided: December 14, 1894
• Status: Published

Opinion

FOLLETT, J.

On the appeal from the order refusing a peremptory writ of mandamus, we have held that chapter 568, Laws 1888, as amended by chapter 291, Laws 1891, is not mandatory, and that the board of estimate and apportionment is not required to audit, allow, and pay the relator’s claim, without regard to its validity, but that under the statute the board has authority to determine whether the claim is valid. The undisputed evidence is that the advertising for which payment is sought was not ordered by the mayor and comptroller, but by the mayor alone. For this reason this court held, in an action brought by the relator’s firm against the city for the recovery of this claim, that it is illegal and not enforceable, which judgment has not been appealed from, but remains in full force. 31 N. Y. Supp. 776. The advertising was done when chapter 854, Laws 1868; chapter 875, Laws 1869; chapter 383, Laws 1870; and chapter 574, Laws 1871,—were in force, and regulated the manner of advertising and publishing official notices and proceedings. It is not contended that the advertising was ordered and performed in compliance with these statutes, and it is plain that the relator has no legal claim against the city for the work which has been done. The statutes referred to are set forth in the opinion on the appeal from the order refusing a mandamus, and an extended reference to them in this opinion is quite unnecessary. We have also held in the case referred to that chapter 568, Laws 1888, as amended by chapter 291, Laws 1891, does not create a liability on the part of the city to pay the claim, or any part thereof. It follows that the determination of the board of estimate and apportionment should be affirmed; with $50 costs and disbursements. All concur.