People ex rel. Treat v. Coler

• Citation: 166 N.Y. 144,59 N.E. 776
• Parties: PEOPLE ex rel. TREAT v. COLER, Comptroller.
• Decision Date: 08 March 1901
• Court: New York Court of Appeals

166 N.Y. 144

59 N.E. 776

PEOPLE ex rel. TREAT

v.COLER, Comptroller.

Court of Appeals of New York.

March 8, 1901.

Appeal from supreme court, appellate division, First department.

Mandamus by the state, on relation of Ralph J. Treat, against Bird S. Coler, as comptroller of the city of New York, to compel respondent to issue a warrant to relator. From a judgment of the appellate division (68 N. Y. Supp. 767) reversing an order denying the writ, respondent appeals. Affirmed.

Parker, C. J., dissenting.

John Whalen, Corp. Counsel (Theodore Connoly and Terence Farley, of counsel), for appellant.

L. Laflin Kellogg and Alfred C. Petté, for respondent.

O'BRIEN, J.

The learned court below awarded a peremptory writ of mandamus against the comptroller of the city of New York, commanding him to deliver to the relator a warrant for the payment of the sum of $3,201.63, the amount earned under a contract for constructing a sewer. There was some difference of opinion in the court below upon the point whether the application should not be denied, as a matter of discretion, and the relator compelled to resort to an action to enforce his claim. The court, however, exercised its discretion in favor of the relator. There was power in the court to grant the writ, and hence the question with respect to the proper exercise of that discretion is not here.

In August, 1899, the relator entered into a written contract with the city whereby he undertook to construct a sewer according to dimensions and specifications prescribed by the contract. It was provided that the chief engineer of sewers should in all cases determine the amount of the several kinds of work to be paid for under the contract, and all questions in relation to the work and the construction thereof, and that his estimate and decision should be final and conclusive upon the contractor; that upon the completion of the work, and the certificate thereof by the engineer and inspector, the city would pay the whole amount due under the contract, except such sums as might be lawfully retained for any of the purposes specified therein. The relator proceeded to perform his contract and completed the work, and a certificate to that effect was made by the engineer and inspector in charge, and the work was actually accepted by the city and approved by its officers more than 30 days prior to the commencement of this proceeding. From the certificate of these city officers, it appeared that there had been earned and was then due for work done and materials furnished, after deducting the amounts authorized to be retained for repairs, the sum of $3,201.63. This certificate was filed in the office of the comptroller, but he refused to draw a warrant on the chamberlain for the sum thus due, or to deliver the same to the relator, or to make payment under the contract. These facts are set forth by the relator in his moving papers, in detail. The answering affidavit makes no denial of the facts alleged. The ground upon which the comptroller bases his refusal is that the relator did not comply with chapter 413 of the Laws of 1895, which requires that all stone of any description, except paving blocks and crushed stone, sued in municipal work of this character, and which is to be worked, dressed, or carved for such use, shall be so worked, dressed, or carved within the boundaries of this state. It is stated in the affidavit that in the month of April last the comptroller was notified in writing that the relator, in the performance of the contract, had procured to be cut, carved, and finished in the state of New Jersey a certain granite sewer basin, which was used by the relator in the completion of the contract in question.

The statute in question (Laws 1895, c. 413) is now section 14 of the labor law (Laws 1897, c. 415), and provides that: ‘All stone of any description, except paving blocks and crushed stone, used in state or municipal works within this state, or which is to be worked, dressed or carved for such use, shall be so worked, dressed or carved within the boundaries of the state. A clause shall be inserted in all specifications or contracts hereafter awarded by state, county or municipal authorities, authorizing or requiring the use of worked, dressed or carved stone therein except paving blocks and crushed stone, to the effect that all such stone shall be worked, dressed or carved for such use as required by this act. If any contractor within this state, or within a municipal corporation of the state, shall violate any provision of this act, the state or such municipal corporation shall revoke said contract, and shall be discharged from any liability to any such contractor by reason of said contract.’ In pursuance of this enactment the contract between the relator and the city contained the following provision: ‘All stone of any description, except paving blocks and crushed stone, used in state or municipal work within this state, or which is to be worked, dressed or carved for said work, shall be so worked, dressed or carved within the boundaries of the state.’ It is admitted in the record that the relator actually performed the work specified in the contract, according to its terms and specifications, and that the sum claimed by him, for payment of which the comptroller was directed by the mandamus to draw his warrant, has been earned and is due. The only obstacle to payment found to be in the relator's way is the fact that he purchased a granite sewer basin in the state of New Jersey, cut, carved, and dressed there, instead of in the state of New York. It is urged that this fact furnishes a complete defense to the city against the relator's claim for payment, although the work has been accepted, and the city and the property owners on the street are enjoying the benefit of it.

It is not necessary to examine the questions involved in the defendant's answer to the application for the writ, since they have just been examined and passed upon in another case. People ex rel. Rodgers v. Coler, 166 N. Y. 1, 59 N. E. 716. We have attempted to show in that case that the facts contained in the defendant's answering affidavit constitute no defense whatever to the relator's claim, since the legislature had no power to enact the statute there invoked. We may, however, supplement the decision in that case with a recent decision, quite analogous in principle, in which the same or similar questions were discussed. Allegeyer v. Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed. 832. We hold in this case, without further discussion, that the enactment requiring all stone for use in municipal work to be cut, carved, or dressed within this state is subject to the same objections.

This case, however, presents a new and additional question, which was not involved in the Rodgers Case. It will be seen, by the provisions of the statute, that the city and the contractor have, in effect, been forbidden to purchase a granite sewer basin that had been dressed or carved in any other state. The city and the contractor are virtually prohibited from procuring such dressed or carved stone as may be needed in the construction of the work or the performance of the contract in any other state. The citizen of another state who has prepared dressed or carved stone for the market is...