would be permitted to continue in office, and to defeat the policy of the political party, in the event of whose success the said commissioners would be deprived of their tenure of office, and in pursuance of such design and purpose, and in order to carry the same into effect, the said members of the said transit commission caused a play to be written, which was to be produced to the public in theaters and elsewhere as a motion picture for such purpose, and, having caused the said play or scenario to be written, delivered such scenario to the plaintiff's assignor, Baumer Films, Inc., with the directions to properly make, manufacture, and produce a film or moving picture which would portray in visual form the sentiments, contentions, arguments, and propaganda expressed in the said scenario and intended to be inferred and implied therefrom."

It is apparent from the answer that the comptroller contends that the expenditure is not one chargeable to the city, and that the debt is not one which could reasonably be incurred by the commission. It is quite evident that, if the indebtedness was properly incurred by the commission, the comptroller must audit and pay the same. On the other hand, the comptroller would not be justified in auditing or paying a bill which was not properly incurred by the commission. The law places a limitation upon the power of the commission to incur an indebtedness, and permits some discretion in the comptroller under the clause that he is to audit. The act does not provide that he must "pay" all expenses certified as correct by the commission; it provides that he must "audit and pay" the salaries and expenses of such commission chargeable to the city. The comptroller is not called upon to audit and pay every expense incurred by the commission-only those chargeable to the city.

If the contention of the petitioner is correct, the comptroller must pay, without audit, and perform a mere ministerial act. If it were the intention of the Legislature to take away all discretionary power from the comptroller, in all likelihood it would have so stated by directing that the comptroller pay on a certification by the transit commission. Power to audit has been held to carry with it obligations and responsibilities which call for examination, investigation, and the use of proper discretion. In a similar case, in speaking of the term "audit," its purpose and extent, Judge Miller, in the case of People v. Jackson, 85 N. Y. 541, at pages 544, 545, said:

*

*

"It will thus be seen that the auditor had a duty to discharge which was not merely clerical, but he was authorized to revise and settle accounts, thus vesting him with the right to pass upon their validity and legality. He was not necessarily bound, as a matter of course, to audit and allow all accounts which had been sanctioned by the trustees of the college, but only such as were authorized by law, and the comptroller was to supervise the same. While, then, the auditor and comptroller were bound to audit and allow all valid claims, it was also their duty to reject such as were without any legal authority. Although the fund was raised, placed into the city treasury and set apart for the use of the college, * as required by law, and the trustees had entire control over it, for legitimate purposes, they had no authority to divert it from the objects for which it was intended. They were not an independent department, with power to control and manage the fund, except as provided. Not a dollar could be drawn without the audit and approval of the auditor and comptroller, and when the trustees exceeded their authority in allowing the claim in question, it was the duty of the auditing officers to revise and settle the claim by rejecting the same. If the trustees were authorized to allow to the widow or representative of the deceased teacher for services which he had not rendered, there would be no limit to their

(202 N.Y.S.)

power in this respect. They might make donations, gifts, or gratuities to any or all their teachers and professors, or even for improper purposes, without limit, restriction, or restraint. The provision of the charter to which we have referred was evidently designed to guard against any such misapplication of the public moneys, and to subject the acts of the trustees to the revision and control of the city officers, to the extent of refusing their approval of a claim presented when manifestly illegal. * * Conceding that the fund is distinct and independent, and devoted to specific purposes, it nevertheless cannot be drawn except according to law; and when this is not done, the municipal officers would be derelict in their duty if they assented to its unlawful appropriation. They are invested with the authority conferred for the very purpose of restraining illegal appropriations of the public moneys, and are equally responsible with the trustees of the college for any abuse or excess of power. It is quite obvious that the trustees of the college exceeded their jurisdiction in allowing the claim, and their act was null and void, and was not obligatory upon the city officers."

In People ex rel. Grannis v. Roberts, 163 N. Y. 70, at page 78, 57 N. E. 98, at page 101, the court said:

"The auditing of an account by the comptroller involves a judicial function. He is required in the language of the books 'to hear, to examine, to pass upon, to settle and adjust.' That function he cannot be required to exercise in any particular way by mandamus, for, as was said by Judge Vann in People ex rel. Harris v. Commissioners, 149 N. Y. 26: "That would subtitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was issued.'"

In People ex rel. Harris v. Commissioners, 149 N. Y. 26, at page 30, 43 N. E. 418, at page 419, Vann, J., writing for the court said:

"The primary object of the writ of mandamus is to compel action. It neither creates, nor confers power to act, but only commands the exercise of powers already existing, when it is the duty of the person or body proceeded against to act without its agency. While it may require the performance of a purely ministerial duty in a particular manner, its command is never given to compel the discharge of a duty involving the exercise of judgment or discretion, in any specified way, for that would substitute the judgment or discretion of the court issuing the writ for that of the person or persons against whom the writ was issued. In such cases its sole function is to set in motion, without directing the manner of performance."

In People v. Common Council, 78 N. Y. 33, at page 39, 34 Am. Rep. 500, the court, Rapallo, J., writing, said:

It is not, like a Judges of Oneida This principle ap

"The office of the writ of mandamus is in general to compel the performance of mere ministerial acts prescribed by law. It may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner. writ of error or appeal, a remedy for erroneous decisions. Common Pleas v. People, 18 Wend. 92-99, and cases cited. plies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgraent. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and, though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be. This principle was applied to an assessor in Howland v. Eldredge, 43 N. Y. 457, 461, and is there recognized as an established and universal rule."

There appears to be a substantial issue here. It is not clear that the expenditure, a moving picture film, was for a public purpose. Under the decisions governing the right to a peremptory writ of mandamus, it has been held that, before a peremptory writ may be granted, it must be shown that there is a clear legal right. In the Matter of Hamburger v. Board of Estimate, 109 App. Div. 427, 428, 96 N. Y. Supp. 130, 131, this court said:

"Mandamus proceeds upon the theory of a clear legal right; it is to correct the neglect or refusal of an officer or board to do that which by law it is bound to do. 串 If he has no power to act, the court will not com

pel him to do that which the law does not."

In the Matter of Eiss v. Summers, 205 App. Div. 691, 696, 199 N. Y. Supp. 544, 549, Mr. Justice Davis, writing for the court, said:

"An order of peremptory mandamus will issue only to compel performance of an official duty clearly imposed by law, where there is no other adequate, specific remedy. The duty must be positive, not discretionary, and the right to its performance must be so clear as not to admit of a reasonable doubt or controversy."

In Haebler v. New York Produce Exchange, 149 N. Y. 414, 418, 44 N. E. 87, 88, the court said:

"Where upon a motion for a mandamus opposing affidavits are read which are in conflict with the averments in the moving affidavits, and notwithstanding this the relator demands a peremptory writ, it is equivalent to a demurrer, and as to any disputed question of fact, the answering affidavits are conclusive and must be regarded as true."

In the case of People ex rel. Uvalde Asphalt Co. v. Grout, 98 N. Y. Supp. 185, Mr. Justice Dowling, sitting at Special Term, said:

"The writ of mandamus should only issue to compel the payment, of money by the city, when the petitioner's right to the payment is clear and unmistakable, and when there is absolutely no defense against payment. It should not issue where it appears that the contract is illegal upon which payment is sought, or where there is grave reason to question its legality. There the petitioner should be relegated to his ordinary remedy by action."

In People ex rel. Rand v. Craig, 231 N. Y. 216, 221, 131 N. E. 894, 895, Judge Cardozo said:

"We have felt it our duty, however, when obscurity has engendered doubt, to fall back upon the fundamental principle that only clear warrant of law will justify the assumption of a power to control the public purse. Stetler v. McFarlane, 230 N. Y. 400, 408. That warrant is not here."

[2] Where it appears that there is a real controversy, a peremptory order should be denied. Such a course is bound to protect those charged with disbursing the public funds, and at the same time bring about a just result. While the comptroller may not thwart the efforts of the transit commission in its endeavor to properly function, at the same time the commission may not compel the comptroller to pay claims which have been improperly incurred, or which are in payment for work done under a contract which was not for a public purpose and chargeable to the city.

Under the circumstances the claimant should have been given an alternative writ, or relegated to an action at law, in order that the legality of the claim may be determined before the funds of the city

(202 N.Y.S.)

are disbursed therefor. The order should be reversed, with $10 costs and disbursements, and motion for a peremptory mandamus order denied, with $50 costs, and an order entered permitting an alternative order to issue.

Order reversed, with $10 costs and disbursements, and motion denied, with $50 costs, and alternative order granted. Settle order on notice. All concur, except

CLARKE, P. J. (dissenting). I dissent. Section 14 of the Public Service Commission Law (as amended by Laws 1921, c. 134, § 19) provides that the board of estimate and apportionment shall from time to time, on requisition duly made by the transit commission, appropriate such sums of money as the commission shall certify to be necessary to properly enable it to perform the duties imposed upon it.

"Such appropriation shall be made forthwith upon presentation of such a requisition without revision or reduction and without the imposition of any conditions or limitations by such board, and such appropria

tion by it is hereby declared to be a ministerial act. If such board shall fail to appropriate such amount as such transit commission shall deem requisite and necessary, such commission may apply to the Appellate Division of the Supreme Court in the First Judicial Department, order requiring such board

to make such appropriation."

for an

The constitutionality of the act was upheld in Matter of McAneny v. Board of Estimate and Apportionment of City of New York, 232 N. Y. 377, 134 N. E. 187, affirming Matter of McAneny, 198 App. Div. 205, 190 N. Y. Supp. 92. The court said:

"Was it the duty of the board of estimate and apportionment, upon receiving the requisitions from the transit commission, to make the appropriations requested? To this question there can, as it seems to me, be but one answer. It was its duty to do so. The act so declares. In making the appropriations the board acts ministerially. It has no discretion as to the amount to be appropriated. The purpose of this provision in the act is obvious. It is to prevent the board of estimate and apportionment from defeating the purposes of the act by withholding appropriations. The pur

pose of the commission in asking for the appropriation, or to what use the money appropriated is to be put, does not concern the board. As well might a register of deeds of conveyance refuse to record a deed until the purpose of the one seeking to have it recorded has been disclosed, as for the board of estimate and apportionment, under this act, to refuse to make the appropriation until the purpose of the commission be disclosed.

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The court also decided that the rapid transit commissioners were not city officers. It also said:

"The act, in addition to amending the Public Service Commissions Law in certain respects, and in addition to vesting in the transit commission certain regulatory functions, and all the powers and duties under the Rapid Transit Act of 1891, as amended, vests in the transit commission, by article 6, and as a grant of a distinct and independent power, the right and duty to prepare a plan of readjustment for the relief of the emergency which is declared to exist, and which plan shall accomplish as nearly as may be, three purposes (section 106): (1) The combination, rehabilitation, improvement, and extension of existing railroads, so that service thereon may be increased and improved to the fullest extent possible. (2) The receipt, as soon as practicable, by the city of sufficient returns from the operation of the railroads, so that the corporate stock or bonds issued by the city for the construction of rapid transit railroads may be exempted in computing the 202 N.Y.S.-2

debt incurring power of the city under the Constitution of the state. (3) The assuring to the people of the city the continued operation of the railroads at the present or lowest possible fares consistent with the just valuations of the railroads and their safe and economical operation."

The requisition for the appropriation having been honored, as the result of the mandamus order granted by this court and affirmed by the Court of Appeals, the transit commission in the performance of the duty imposed upon it to prepare a plan of readjustment, as provided supra, in the exercise of the discretion vested in it as a state board untrammeled by any lawful interference by city authorities, made a contract for the taking of moving pictures showing the actual conditions existing under the present passenger transportation systems. The contract was duly performed and the proper papers and vouchers were duly forwarded for payment. Thereupon a city official, the comptroller, refused to honor the said vouchers, upon the ground that in his opinion the expenditure was not authorized. The Court of Appeals in the case cited said:

"The purpose of the commission in asking for the appropriation, or to what use the money appropriated is to be put, does not concern the board" of estimate.

Neither in my opinion does it concern the comptroller. Section 14 of the Public Service Commission Law which provides that the appropriation shall be made as requisitioned "without revision or reduction and without the imposition of any conditions or limitations" immediately preceding the clause in said section conferring power upon this court to compel the appropriation, continues:

"It shall be the duty of the comptroller or other chief fiscal officer of such city, after such appropriation shall have been duly made, to audit and pay the salaries and expenses of such commission chargeable to the city, upon vouchers therefor."

The phrase "chargeable to the city" is employed because the section provides that the salaries of the commissioners, secretary, and counsel are to be paid by the state treasurer upon the order of the state comptroller, while "all other salaries and expenses" of the transit commission shall be chargeable to "the city in which such commission has jurisdiction." The section then provides the procedure for the payment thereof. It is inconceivable to me that the same section, which denies all discretion to the board of estimate and apportionment as to the amount of appropriation and the purposes for which made, can be held to confer it upon the comptroller. In my opinion, his power and duty under this act is also purely ministerial. His duty, after the appropriation shall have been duly made, is to audit; that is, to examine and see from the vouchers presented to him whether the contract was made, whether the proper certificates of performance were attached, and whether the amount asked for conforms to the contract and the certificates. It is not within his jurisdiction to determine whether the contract ought to have been made. That palpably is for the commission to determine, and its decision is binding on him. If not, the elaborate scheme evidenced by this act to lodge power and responsibility upon this state board, unhampered by the city authorities, is thwarted, and the power deliberately denied to the powerful board of estimate and apportionment is possessed by a single city official, and