Opinion
August, 1899.
H.H. Shook and T.B. Wakeman, for relator.
J.C. Davies, Attorney-General, opposed.
The application for a mandamus against the respondent, as Superintendent of Banking, whose office is at the Capitol in Albany, ought to have been made in that or an adjoining county. People ex rel. Cagger v. Supervisors of Schuyler Co., 2 Abb. N.S. 78; Mason v. Willers, 7 Hun, 23. The intimation to the contrary in People ex rel. Davenport v. Rice, 68 Hun, 24, although entitled to great respect, is not controlling, being obiter merely. It can hardly be supposed that the Legislature intended that a public officer, whose duties require his constant attendance at Albany, should be taken to any of the sixty-one counties of the State, which a petitioner in mandamus proceedings may select to answer for his official acts. Such proceedings may eventuate in a trial of an issue of fact, and such issue ought to be determined in the county in which the public office is located. By analogy, see People v. Hayes, 7 How. Pr. 248; People v. Pillsbury, 11 id. 240; Wintjen v. Verges, 10 Hun, 576; Cowen v. Quinn, 13 id. 344. Even if such a question were a doubtful one, capable of two constructions, public interest, which molds the policy of the State, would suggest the propriety of resolving the doubt in favor of public welfare. The proceeding is based upon section 2 of chapter 326 of the Laws of 1895, for the incorporation of associations for lending money on personal property, which section provides that a reward of $250 shall be paid by the State to the person first giving information and furnishing legal proof of a violation of the provisions of said act. The relator is endeavoring to procure a certificate to the effect that he has complied with the act and is entitled to the reward. The information and proof required must be lodged with the State, and it matters not how they reach their destination. Until the papers are put into the physical possession of the State officials at Albany, the State incurs no liability, and the informant secures no rights. The reward becomes payable only after certain results are obtained at the seat of government; and the cause of action, if it may be so termed, arises in the city of Albany, and not elsewhere. Service by mail is not provided for by the act; so that under its provisions the risk of the mail is on the informant, not the State. The preliminary objection to the hearing of the application on its merits in the first department is, therefore, sustained, without costs, and without prejudice to a new proceeding in the proper county, where the merits may be determined.
Ordered accordingly.