The People of the State of New York ex rel. Richard Gibbons, Appellant, v. Bird S. Coler, Comptroller of the City of New York, Respondent

The People of the State of New York ex rel. Richard Gibbons, Appellant, v. Bird S. Coler, Comptroller of the City of New York, Respondent. Comptroller of the city of New York—his certificate that the city has funds applicable to a contract— it relates to the time when the certificate is given —opposing affidavits in a peremptory mandamus proceeding taken to be true — the comptroller of the Greater New York is the successor of the comptroller of Brooklyn. The fact that at the time when a contract with the city of Brooklyn was executed the comptroller of that city had sufficient funds applicable thereto to comply with the requirements of the city charter (Laws of 1888, chap. 583), making it his duty to grant a certificate to that effect, under section 8 of title 18 thereof, providing that a contract shall be valid and binding only when the comptroller shall certify “that the means required to make the payments under such contract are provided and applicable thereto ” — which provision is substantially re-enacted in section 149 of the Greater New York charter (Laws of 1897, chap. 378) — does not make it incumbent upon the comptroller of the consolidated city of New York to grant the certificate at a time when he has not sufficient funds applicable to the contract, as the certificate required relates to the fact as it exists at the time when the certificate is made. On an application for a peremptory writ of mandamus, allegations contained in the opposing affidavits, whether by way of denial or in affirmation of new matter, must be taken as true. The comptroller of the present city of New York is in law the successor of the comptroller of the late city of Brooklyn, the comptrollership being a continuous office. Appeal by the relator, Richard Gibbons, from an order of the Supreme Court, made.at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of May, 1899, denying the relator’s motion for a peremptory writ of mandamus directed to Bird S. Ooler, comptroller of the' city of New York, commanding him to certify that there is in the treasury of that city $7,000 available and applicable to the payment for work to be done under a contract made between the city of Brooklyn and M. Gibbons & Sons, dated August 24,1897, over and above the sum of $15,000, theretofore appropriated for said work. Isaac M. Kapper, for the appellant. William J. Carr [R. Percy Chittenden with him on the brief], for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The application is for a mandamus, to the comptroller of the city of New York, commanding him to certify that there is the sum of $7,000 in the treasury of the city, available and applicable to the payment of work to be done under a contract made between the relator and the officers of the late city of Brooklyn. By section 3, title 18 of the charter of the city of Brooklyn (Laws of 1888, chap. 583), it was provided that a contract should be valid and binding only when the comptroller should certify “ that the means required to make the payments under such contract are provided and applicable thereto,” and the Greater New York charter (Laws of 1897, chap. 378, § 149) contains substantially the same provision. In answer to the relator’s application, the comptroller makes affidavit that he has not funds applicable to the contract sufficient to pay for the work to be done thereunder. It would be unprofitable to state the details of the respondent’s affidavit tending to show that he is without funds, or those of the relator’s petition on which is based the claim that there either is or should be sufficient money on hand to pay for the work. The main contention of the relator is that when the contract was executed the comptroller of the city of Brooklyn had sufficient funds, and should, therefore, have certified the contract; that the comptroller of the city of New York is, in law, the successor of the comptroller of the late city of Brooklyn, and, therefore, the duty undischarged by his predecessor remains obligatory on the present comptroller. We concede the relation between the comptroller of the late city of Brooklyn and the present comptroller of the city of New York. We also concede that the comptrollersliip is a continuous office. (People ex rel. Dannat v. Comptroller, 77 N. Y. 45.) Tlie respondent is not asked to certify that at any previous time there were funds applicable to the payment of the relator’s contract (a certificate of that character would be valueless), but to certify to the fact as it exists when the certificate is made. A mandamus will not lie to compel a public officer to certify to an untruth. (People v. Fowler, 55 N. Y. 252.) The denials contained in the affidavit of the respondent are not illusory or evasive, and the facts tending to show the truth of such denials are positively stated. The allegation of the respondent’s affidavit, whether by way of denial or of affirmation of new matter, must be taken as true on an application for a writ of peremptory mandamus. If the relator wishes to take issue on the facts, he must apply for the alternative writ. The order appealed from should be affirmed, with ten dollars costs and disbursements, with leave to the relator to take an alternative writ of mandamus. All concurred. Order affirmed, with ten dollars costs and disbursements, with leave to the relator to take an alternative writ of mandamus.