Citations
- 69 A.D. 409
Full opinion text
Willard Bartlett, J.:
The order which this appeal brings up for review commands the issuance of a peremptory writ of mandamus directing the cómptroller of the city of New York, who has succeeded to the functions of the town treasurer .of the late town of Gravesend, to pay the relator $15,185.03) from the fund realized by the sale' of bonds of the town of Gravesend, for tlie purpose of raising money-for the grading. of Neptune avenue.
The relator was the assignee of a contract for the construction and grading of Neptune avenue, originally awarded to John Cur-ran. The legislation in regard to the raising of moneys with which to pay for this and similar local improvements, was quite fully considered by the Court of Appeals in the case of People ex rel. Dady v. Supervisor (154 N. Y. 381). The relator’s claim in the present proceeding is not on account of work done under the original contract, but arises out of certain extra work which he claims to have performed at the request and direction of the engineer and inspector appointed by the grading, commissioners, and with the approval and by the direction of the grading commissioners themselves.
The allegation of relator’s affidavit on this subject is as follows: “ That by reason of the refusal of the defendant and his predecessor in office and the other officials of the Town of Gravesend to perform their duties Until compelled to do so by orders of the Court,' certain of the physical conditions surrounding the work of constructing such street, which were not in existence at the time that such contract was made or at the time that the relator received his first certificate in August,"1894, were greatly changed) and by the request and direction of the Engineer and Inspector duly appointed by said Grading Commissioners, and with the approval and direction of said Grading Commissioners, the relator herein was required to perform additional work not called for or covered by. the specifications or contract in question. That the amount of such extra work and materials not called for by such contract equals the sum of fifteen thousand one hundred and eighty-five and three one-liundredths •dollars ($15,185.03) as per bill of items hereto annexed.”
In the same affidavit the relator further alleges that the inspector in charge of the work, and the engineer appointed by the grading ■commissioners, “ have duly given their certificates to the effect that the amount of such charges are reasonable and proper, and that the relator is entitled to payment therefor.”
No other certificate as to the propriéty of the desired payment appears to have been obtained by the relator. I think that another and different certificate is required by law before he can become ■entitled to enforce his present claim.
The money now in the hands of the comptroller of the city of New York as successor of the town treasurer of Gravesend, applicable to the payment of claims of this character, was obtained by the sale of bonds, the issue of which was authorized by chapter 118 of the Laws of 1892, as amended by chapter 171 of the Laws of 1893. In section 8 of this statute provision is made for the application of a portion of the money received from the sale of such bonds to the compensation of the town assessors, and the supervisor is directed thereafter to pay the balance to the town treasurer, who is to apply the same in payment of the demands for the construction and carrying on of the local improvements provided for in the acti The manner in which these demands are to be paid is prescribed in these words: