Citations
- 238 N.Y. 326
Full opinion text
Cardozo, J.
The town board of the town of Brighton established a district for the construction of a sewer system (Town Law [Cons. Laws, ch. 62], § 230), and appointed sewer commissioners (Town Law, § 231) to build the system and maintain it. The commissioners employed as their contractor (Town Law, § 234) Nicola Desiderio, one of the relators in this proceeding, but later while he was in the course of performance, took the work out of his hands, and still later abandoned it altogether. He claims that there remains due to him a balance of $23,638.29, partly for work done under the contract, partly for extra work, partly for damages. The commissioners after due demand have refused to pay this balance or any part of it. They have refused to file with the town board the notices or other documents necessary to enable payment to be made out of the proceeds of bonds issued to defray the cost of the improvement. They have taken the position that the contractor is in default, and that for this reason and for others there is nothing to be paid.
In this situation, the contractor applied for a mandamus directed to the board and the commissioners. He joined with him as relator the Traders’ National Bank of Rochester, which held an assignment of his claim as collateral security. The prayer of the petition is that the claim be paid forthwith out of moneys, the proceeds of bonds, alleged to be on hand and available therefor; and, if the money be not on hand, that the commissioners audit the demand and serve upon the town board the notice requisite under the statute to cause • the money to be raised. There is a final, prayer that both commissioners and board be required to do such other acts and things as may be essential to secure to the relators the payment of the claim in full. On this petition there was issued an alternative mandamus order' to which the respondents made return contesting the relators’ claim and disowning liability. On the eve of trial, they procured against the protest of their adversaries an order which turned the alternative mandamusánto a peremptory one, but with a scope and operation narrower by far than the relief prayed for in the petition. The commissioners were directed to audit the claim upon the merits, but they were left free upon such audit to approve or to reject. Neither against them nor against the board does the order embody the declaration of a duty to pay. Whether such a duty may be declared in this proceeding, is the question to be answered. If sewer commissioners, in acting upon a demand for payment, are invested by statute with gw