People ex rel. Opdyke v. Brennan

39 Barb. 651, 1863 N.Y. App. Div. LEXIS 55

Opinion

By the Court,

Sutherland, J.

The words of the act are “ four papers having the largest daily circulation.” We have no right to add to this the words “in the city of New York.” It is reasonable and probable, that the legislature intended that the advertisements should be published in the four papers having the largest daily circulation in the city of New York, but it is also reasonable and probable that the ' act was worded on the theory, that the four papers having the largest daily circulation generally would have the largest daily circulation in the city of New York. We think therefore, that the construction of the act by the mayor and by the justice who made the order appealed from was correct. But as the determination of the question of fact which four papers have the largest daily circulation, involves the consideration of evidence, and an adjudication upon such evidence, by the mayor and the comptroller, we do not see upon what principle a mandamus can issue commanding the comptroller to unite with the mayor in designating four certain papers, naming them in the mandamus. This court could, by mandamus, compel the mayor and comptroller to meet and act in the matter; but we do not think that we could compel them to act in a particular manner ; that is, to unite in designating four certain papers named by the court. (The People v. Dutchess C. P. 20 Wend. 658. Ex parte Bassett, 2 Cowen, 458. The Judges of the Oneida Common Pleas v. The People, 18 Wend. 78. Opinion of the Chancellor and cases cited.)

We think the order appealed from should be modified, so as to order a mandamus to issue to the comptroller, directing him to unite with the mayor in designating the four papers having the largest daily circulation, generally.