Opinion
Argued March 29, 1932
Decided April 26, 1932
Appeal from the Supreme Court, Appellate Division, First Department.
Herman Mendes and George Lessall for appellant. Arthur J.W. Hilly, Corporation Counsel ( Alfred D. Jahr and Edwin J. Talley of counsel), for James J. Walker et al., respondents.
Jeremiah T. Mahoney for Charles W. Berry, respondent.
Charles J. Miville and John J. Curtin for Brooklyn Daily Eagle, respondent.
Mandamus is not the proper remedy. There was no clear, legal duty on the part of the Commissioners of the Sinking Fund to certify the resolution.
The question as to the power of the Comptroller is not decided. (Cf. Matter of Craig v. Matthews, 238 N.Y. 88; Craig v. Commissioners of Sinking Fund, etc., 208 App. Div. 412; McCarthy v. Mills, 214 App. Div. 70.)
The order should be affirmed, with costs.
POUND, Ch. J., CRANE, LEHMAN, O'BRIEN, HUBBS and CROUCH, JJ., concur; KELLOGG, J., not sitting.
Order affirmed.