The People of the State of New York ex rel. Andrew Rohr, Respondent, v. James Owens, as Treasurer of the Village of Ossining, Appellant

The People of the State of New York ex rel. Andrew Rohr, Respondent, v. James Owens, as Treasurer of the Village of Ossining, Appellant. Second Department, December 29, 1905. Mandamus—writ lies to compel payment of money appropriated by • village— when diversion of moneys no defense. When money is raised and appropriated by a village for a 'specific purpose,, mandamus will.lie on behalf of the payee to coinpel payment by the village treasurer, and it is no answer to say that the money was diverted from its proper purpose by the prior incumbent of the office. Appeal by the defendant, James Owens,' as treasurer of the . village of Ossining, from a final Order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of 'Westchester on the 14th day of February, 1905,,. directing the issuance of a. peremptory writ of mandamus, .' Frank L. Young, for the appellant. Smith Lent, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The relator holds a- draft, which reads: “ No. M. 998. Ossining, N. Y., Oet. 1, 1903. “ TREASURER OF THE VILLAGE OF OSSINING, “ Pay to the order of Andrew Rohr One Thousand Dollars, with legal interest on account of litigation. “ $1,000. “ J. M. Teewilliger, " ‘ ABRAM HYATT, “ Cleric. President.” After delivery of the draft the village of Ossining in its tax levy for the year 1903 included an amount necessary to pay it, and the money was raised and came into the hands of the then village treasurer, whose term expired in March, 1904. On October 7,1904, payment was demanded of his successor, who refused it, whereupon this proceeding was brought against him. The learned counsel for the appellant states in his printed points: “ The money which was raised for the purpose of paying said draft was diverted from.its proper purpose to the payment of other drafts,” and no part of the money came into the official hands of the present treasurer. His contention is that under such circumstances this proceeding will not lie. As the money was raised and appropriated for a specific purpose, I think that the eye of the law still regards it as in the treasury and applicable to the discharge of the draft, and that this case must be decided upon the authority of People ex rel. Dannatt v. Comptroller (77 N. Y. 45). (See, too, People ex rel. Pennell v. Treanor, 15 App. Div. 508.) The final order is affirmed, with costs. Order to be settled before Jenks, J. Hirschberg, P. J., Bartlett, Woodward and Hooker, JJ., concurred. Final order affirmed, with costs. Settle order before Jenks, J.