People v. Parmerter

• Citation: 53 N.E. 40,158 N.Y. 385
• Parties: PEOPLE v. PARMERTER, Clerk.
• Decision Date: 07 March 1899
• Court: New York Court of Appeals Court of Appeals

158 N.Y. 385

53 N.E. 40

PEOPLE

v.PARMERTER, Clerk.

Court of Appeals of New York.

March 7, 1899.

Appeal from supreme court, appellate division, Third department.

Application by the people of the state of New York for a writ of mandamus to compel Hartley H. Parmerter, as clerk of the village of Plattsburg, to attest and affix the village seal to certain bonds and to register said bonds. From a judgment of the appellate division affirming an order directing a peremptory writ to issue (46 N. Y. Supp. 1098), defendant appeals. Reversed.

S. L. Wheeler, for appellant.

Thomas B. Cotter, for the State.

O'BRIEN, J.

The order from which this appeal is taken directed that a peremptory writ of mandamus issue requiring the defendant, as clerk of the village of Plattsburg, to forthwith attest and affix the seal of the village to each of 22 water bonds, of the denomination of $1,000 each, dated July 1, 1896, executed by two persons, who are described as water commissioners of the village, and to register the same in a book kept by him for that purpose. The application for the writ was supported by an affidavit made by these two persons, who swear that they constitute the board of water commissioners of the village, and are clothed with the powers conferred by chapter 188 of the Laws of 1874. It is further stated in this affidavit that on the 1st of July preceding, there became due and payable $12,000 of the water bonds, constituting a part of the bonded indebtedness of the village, which had been theretofore duly contracted, and that there was to become due on the 1st of January, 1897, the further sum of $10,000 of outstanding bonds; that, at a regular meeting of the board of water commissioners held on the 8th day of June, 1896, it was resolved that new bonds, amounting to $22,000, should be issued, the avails to be used to retire the $12,000 of bonds already due, or about to become due on the 1st of July, 1896, and also the $10,000 of bonds to become due on January 1, 1897, these bonds to be issued under chapter 685 of the Laws of 1892, principal and interest payable at a bank named, at the rate of 4 per cent. semiannually, January and July of each year, from July 1, 1896, when said bonds shall be dated. The affidavit then states that, in pursuance of this resolution, the board of water commissioners caused to be printed, and had negotiated the sale of, the 22 bonds in question, for the purpose of renewing the $12,000 of bonds falling due July 1, 1896, and the $10,000 falling due January 1, 1897. It it also stated that the bonds to be retired were issued to refund bonds originally issued to borrow money to construct waterworks for supplying the village with water. It is then state that, when the bonds were printed and signed by the two commissioners making the affidavit, as sole commissioners, they applied to the defendant, as clerk of the village, to attest the same, and attach the village seal thereto, as such clerk, and to register the same in the village book kept for such purpose, but that the defendant refused, and still refuses, to attest the bonds, or any of them, and refuses to affix the seal of the village thereto, or to register the same, or any of them. No other facts bearing upon the right to procure the mandamus were stated, and upon this affidavit an application was made at the special term of the supreme court held on the 13th of July, 1896, for an order directing the writ prayed for to issue against the defendant. The defendant made no affidavit in opposition to the application but it appears from the face of the order that he appeared before the court by counsel and opposed the application. Since there was no controversy in regard to the facts, the defendant's opposition to the application must be regarded as, in substance, a demurrer to the facts stated in the moving affidavit.

The question is therefore presented whether the moving parties have stated sufficient facts in their affidavit to entitle them to the order which was made upon the application. They were bound to show to the court that the defendant had refused to perform some clear legal duty that the parties making the application were entitled, as matter of law, to have him perform. If the proof presented to the court fell materially below this requirement, it must follow that the order was improperly granted. We think that the application should have...