Opinion
Argued October 2, 1877
Decided November 13, 1877
Nathaniel C. Moak, for appellant.
N.P. Hinman, for respondent.
The appeal papers in this case show quite clearly that a fraud was perpetrated upon the board of supervisors, in reference to a considerable portion of the relator's claim. It is also apparent that another portion of the claim allowed was without any authority or sanction of law. Under such circumstances, it is manifest that a case was not made out, within the well-settled principle that a remedy by peremptory mandamus cannot be invoked, unless there is a clear and unquestioned legal right. ( People ex rel. Mott v. Board of Supervisors of Greene Co., 64 N.Y., 600, and cases cited.) The right to a mandamus was by no means clear, in the case at bar, and the court below were fully justified in refusing the application. But, even if a case was made out in which a peremptory mandamus might be issued, the court was vested with a discretionary power, under the facts presented, in granting or refusing the writ. (See People ex rel. Hackley v. Croton Aq. Board, 49 Barb., 259, and cases cited.) In the exercise of that discretion, it was its duty to see that the rights of the relator were fully protected; and it is authorized to direct the issuing of an alternative writ, in cases where the facts relied upon by the relator are in dispute, or where the parties wish to review the case upon appeal, or upon the suggestion of either party. ( People ex rel. Mott v. Supervisors of Greene Co., supra.) It does not appear that any suggestion was made at Special Term, by the relator's counsel, to the effect that an alternative writ was desired. It may be assumed, therefore, we think, that the relator's counsel was willing to take the chances of maintaining his right to a peremptory mandamus upon appeal, and did not desire an alternative writ. In this aspect of the case, there is no ground for complaint that an alternative writ was not granted.
This view is also supported by the opinion of the judge upon the decision of the motion at Special Term, which constitutes a part of the record, and shows that the relator was given the right to renew his motion, if so advised, or to take an alternative mandamus, if he preferred; or a reference to take proof of the correctness and nature of his claim as presented, or of any fact connected with the audit of the same. This was not accepted, as the order shows; and the relator, therefore, can only pursue his remedy by motion for such relief as he may be entitled to under the order of Special Term, and the order appealed from should be affirmed, with costs.
All concur, except FOLGER, J., absent.
Order affirmed.