Coombs v. Edwards
| Decision Date | 23 May 1939 |
| Parties | COOMBS v. EDWARDS et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE Appeal from Supreme Court, Appellate Division, Second Department.
Proceeding in the matter of the application of Samuel M. Coombs, Jr., as receiver of Walker Cement Products Company, Incorporated, for a peremptory order directed to Louis F. Edwards and others, constituting the Council of the City of Long Beach, to compel them to include in the 1939 budget a sum sufficient to pay a judgment obtained by Samuel M. Coombs, Jr., for building materials furnished to the city. From an order of the Appellate Division, 256 App.Div. 844, 9 N.Y.S.2d 421, reversing an order of the Special Term denying a motion by petitioner for a peremptory order directing the defendants to include such sum in the budget, the defendants appeal. The Appellate Division granted the motion in the exercise of discretion.
Order of Appellate Division reversed and order of Special Term affirmed.Bernard H. Reich, Corp. Counsel, of Long Beach, for appellants.
Robert Emmet Connolley, of New York City, for respondent.
This is a proceeding by which one of a number of creditors, whose claims comprise a so-called floating indebtedness, seeks to obtain compulsory payment of his debt ahead of those holding similar claims.
The question presented for decision is whether a mandatory order may be denied on the ground that to grant the order would be preferring this creditor over other creditors of the same class, it not having been shown that there are sufficient funds available at this time, without crippling the city, to pay all the floating indebtedness.
Facts sufficient to show the question raised and the decision are briefly as follows: The petitioner sold building material to the city after 1932, when the city had a large floating debt incurred during the years 1925-1931, which it then appeared impossible for the city to liquidate except by proportionate payments of equal amounts over the course of approximately ten years. Since September, 1932, respondent has been receiving payments on account of the principal of his debt and interest at six percent. In 1935 the county of Nassau sued the city of Long Beach for taxes collected and due, but not paid, to the county, and recovered a judgment for approximately $430,000. Thereafter this court, exercising discretion as to the manner in which the judgment should be paid, required only that ten per cent be included in each annual budget, beginning in 1936.
Of the petitioner-respondent a receiver was appointed by the Court of Chancery in the State of New Jersey in June, 1932. His duties have been completed except for the collection of this judgment, which was entered in December, 1937. He is anxious to expedite the collection of this debt so that the receivership may be sooner closed.
Since the beginning of this litigation the city has omitted to make the pari passu payments upon this claim.
This is an application for an order to compel performance of an alleged duty. Obviously such order takes the place of the old writ of mandamus. It is employed only in cases where other remedies fail and the conditions surrounding its use are not found in the ordinary suit at law. The burden is thrown on the applicant for the order to demonstrate the necessity and the propriety of its use. Even then the...
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