Ready v. Mayor

• Decision Date: 27 November 1894
• Citation: 38 N.E. 1006,144 N.Y. 63
• Parties: PEOPLE ex rel. READY v. MAYOR, ETC., OF CITY OF SYRACUSE et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 63

38 N.E. 1006

PEOPLE ex rel. READY

v.MAYOR, ETC., OF CITY OF SYRACUSE et al.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term, Fourth department.

Mandamus by the people, on the relation of Patrick Ready, to compel the mayor and common council of the city of Syracuse to collect an assessment or issue bonds in payment of work done on a sewer. From a judgment of the general term (20 N. Y. Supp. 236) reversing a judgment in favor of respondents below, they appeal. Affirmed.

Charles E. Ide, for appellants.

T. E. Hancock, for respondent.

BARTLETT, J.

This is an appeal from an order of the general term, Fourth department, reversing a final order and judgment of the special term, which denied relator's application for a peremptory writ of mandamus to complete the collection of an assessment or to compel the issue of bonds in accordance with the character of the city of Syracuse, in order to pay the relator for constructing a sewer. This case was carefully examined by the general term, and the questions of fact disussed at length. We agree with its conclusions, and do not think it necessary to go over many of the points discussed in the opinion below. We shall content ourselves with a statement of the points which we hold to be controlling.

There are certain admitted facts in this case. The relator entered into a contract with the city of Syracuse to construct a sewer in Fayette and Spruce streets. He built the sewer, and delivered it to the city. The city has since tapped it, and connected it with the sewers in Pine street and Beach street, and it is now used to conduct the water from these connecting sewers. The work having been completed, the city engineer duly certified the fact to the common council, and that body adopted a resolution directing the city assessors to assess upon the abutting property the costs of constructing the sewer, and this was accordingly done. The amount so assessed was $5,545.24. The amount of $1,516.60 was collected by the city treasurer, and nothing further has been done to enforce the assessment. The common council declared its intention, by resolution, to issue improvement bonds to pay for the construction of the sewer. Confronted by this situation, the relator sought, by mandamus, to compel the mayor, city treasurer, and common council to perform their duties by collecting the balance of the tax assessed, or by issuing bonds as required by law. It is urged by the counsel for the appellants that the relator has a perfect remedy at law, and that th writ of mandamus was properly denied. The contract provided that no payment that the writ of mandamus was properly denied. the cost of said work shall have been ascertained and assessed upon and collected from the taxpayers liable to local taxation upon the same.' No action was, therefore, maintainable by the relator against the city, but his proper remedy was to compel, by mandamus, the officers of the city having the matter in charge to proceed with their duties as required by law. Hunt v. City or Utica, 18 N. Y. 442;Lake v. Trustees, 4 Denio, 520.

The return to the alternative writ set up several defenses, but those insisted on were that the sewer was not located at the depth required by the contract, and that the certificate of the engineer was given under a mistaken idea of the facts, and was false and incorrect. By the terms of the contract it was provided that all plans, explanations, and...