accident in August, 1918, with this new witness, Bruce, and that was after the original judgment had been reversed in the Appellate Division, so he must have known at that time what evidence Bruce would give on another trial. After the reversal of the judgment in the Appellate Division on the ground that plaintiff had failed to show actionable negligence, she commenced another action on August 12, 1918; but it was discontinued upon stipulation November 20, 1918, and plaintiff waited from that time until August 5, 1919, before making this motion.

Plaintiff is not entitled to a new trial, for the reason that she was guilty of laches, and also on the ground that it cannot be said that the new evidence would probably strengthen her case, in view of the fact that the theory now advanced in order to charge the defendant with negligence is inconsistent with the theory adopted at the time of the trial. If it was true, as testified to then by the plaintiff's witnesses, that decedent went up a ladder to the outside girder, it is incredible that he could have gone by way of the crane operator's cage, as now claimed by this new witness, Bruce; it clearly appearing that decedent had not at any time gone to the ground after he had first climbed upon the outside girder by way of a ladder. Biddescomb v. Cameron, 58 App. Div. 42, 68 N. Y. Supp. 568; Pospisil v. Kane, 73 App. Div. 457, 77 N. Y. Supp. 307.

The order appealed from should be reversed, with costs.

LAMBERT, DE ANGELIS, and HUBBS, JJ., concur.

KRUSE, P. J. (concurring). This is not the usual application for a new trial upon the ground of newly discovered evidence, where the moving party has met an adverse verdict. Here the jury found for the plaintiff, and the judgment was reversed in this court, and the complaint dismissed, upon the ground that the evidence was insufficient as a matter of law to sustain the verdict.

The vital fact in the newly discovered evidence is that the craneman had knowledge that plaintiff's intestate was at work upon the girders and likely to be injured by the movement of the crane, as was done. I think the evidence upon the trial already had was sufficient to warrant the jury in so finding. If all the evidence on such trial does. not make out a case of actionable negligence, the new evidence would not, as it seems to me, supply the deficiency. My own view is that the evidence upon the trial made out a case of actionable negligence against the defendant in operating the crane without warning the telephone employés at work upon these girders. The cranemen knew, or should have been told by defendant, of their presence, and precaution taken against injuring them by operating the crane where they were at work. These workmen were more than bare licensees. They were invited by defendant, and doing work in which it was beneficially interested.

(111 Misc. Rep. 1)

(182 N.Y.S.)

OBELISK WATERPROOF CO. v. CLOHER, County Comptroller, et al. (Supreme Court, Special Term, Oneida County. March, 1920.)

1. Mandamus 71-Court may compel performance of ministerial acts. The purpose of a writ of mandamus is to compel official action, and when the duty sought to be enjoined is solely of a ministerial character the court can direct the performance of the act.

2. Mandamus 70-Court can only compel exercise of discretion.

When an act is judicial, involving the exercise of discretion, all the power the court has is to command the exercise of such discretion. 3. Mandamus ~101—Writ lies to compel audit, when of a ministerial character.

A public officer, invested with auditing powers, cannot arbitrarily refuse an audit; and where, upon the conceded facts, it is his duty to make such audit, it is of a ministerial character, which may be compelled by mandamus.

4. Mandamus

101-Duties of county comptroller as to claims ministerial,

so that writ will lie.

Under Laws 1909, c. 466, under which county comptroller holds his office, and County Law, § 235, requiring all claims against a county to be filed in his office before presentation to board of county supervisors, and requiring him to examine and report thereon before they are audited and ordered paid by board, and to find whether claims are just and in accordance with contract therefor, and to certify his examination with advice as to allowance, his acts are purely ministerial, so that their execution may be compelled by mandamus, notwithstanding he went beyond his authority and pronounced upon the legality of the contract.

5. Mandamus 10-Court will not compel county comptroller to act on invalid contract.

While the county comptroller, under Laws 1909, c. 466, and County Law; § 235, has no authority to pass on the validity of a contract which is the basis of a claim presented for audit against the county, yet if such contract is in fact invalid, the court will not command him to act upon it.

6. Counties 117-Contract for repairs to county courthouse awarded without advertisement construed to be valid; "local laws;" "orders;" "rules." In view of Laws 1908, c. 418, § 4, authorizing boards of supervisors to enact local laws or rules governing their business, and of a local law enacted thereunder requiring all contracts involving expenditure of over 200 to be awarded only after proper advertisement, and of a rule permitting suspension by unanimous consent, the board might so suspend a local law requiring advertisement, "local laws," "rules," and "orders" being used interchangeably, so that a contract thereafter made without advertisement was lawfully awarded.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Local Law; Order; Rule.]

7. Counties 123-Board of supervisors held to have waived giving of bona required by contract.

Where a contractor for repairs on a county courthouse, who did not furnish the bond required by the contract, there being no requirement that such a bond should be given, aside from the contract itself, the board of supervisors by accepting the bond which was executed, and permitting the contractor to proceed with the work, waived the giving of any other security.

8. Mandamus 3 (5)-Contractor's suit against county on contract held not an adequate remedy.

In mandamus by contractor with a county to compel county comptroller to audit a certified claim, the comptroller's contention that a suit against For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

county would lie for breach of the contract was without merit, as that would not furnish the contractor with the adequate and complete remedy to which he is entitled, where he had already performed work on the contract to the amount of $6,400 and by its terms was then entitled to be paid 85 per cent. thereof.

9. Mandamus 15-Failure to provide fund to meet contract no reason for not compelling comptroller's audit.

That a county board or supervisors had provided no fund to meet a claim of a contractor for repairing the county courthouse was no reason why mandamus should not issue on the contractor's petition to compel audit of an inspector's certificate as to the amount then due the contractor. 10. Mandamus 102 (1)—Writ does not lie to compel county comptroller to sign a warrant for claim not audited.

Mandamus will not lie to compel a county comptroller to sign a warrant drawn on the county treasurer by the clerk and chairman of the board of supervisors in favor of a contractor, since the board had no right to act on the claim in advance of the comptroller's audit, and since the warrant did not conform to County Law, § 235, in that it did not state the fund against which it was drawn.

11. Mandamus 101-Writ held not to lie against county supervisors to compel allowance of contractor's claim.

Where the board of county supervisors did not refuse to audit and allow a contractor's claim on an approved certificate for work done, and where such an act in advance of the report by the county comptroller, under County Law, § 235, would be premature, the writ must be denied as against the supervisors.

12. Mandamus 190-Where only part of relief sought is granted, no costs should be allowed.

The allowance of costs in a mandamus proceeding is discretionary, and where only part of the relief asked for is granted, the settled rule in equity is that no costs should be allowed to either party.

Application by the Obelisk Waterproof Company for a peremptory writ of mandamus against William H. Cloher, Comptroller, and the Board of Supervisors of Oneida County. Application dismissed as to Board of Supervisors, and granted as against the Comptroller.

Timothy Curtin, of Utica, for petitioner.

Davies & Wilkinson, of Camden, for comptroller.

H. N. Harrington, of Rome, for board of supervisors.

EMERSON, J. The board of supervisors of Oneida county on August 5, 1919, entered into a contract with petitioner to make certain repairs upon the county courthouse for the contract price of $28,250. The contract provided that the work should be done under the supervision of one John G. Roberts, a member of the board, and that, upon his certificate of the amount of work done, 85 per cent. thereof should be paid monthly. The contract further provided that the petitioner guaranteed the work for the period of 10 years, and that he should give security in the sum of $10,000 for the faithful performance of the contract.

The petitioner entered upon the performance of said contract, and on August 30, 1919, had performed work and furnished materials. under and pursuant to the same of the value of $6,400. Roberts, the inspector, on that day gave it a certificate to that effect, and stated that the sum of $5,440, being 85 per cent. of said sum, was

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

then due the petitioner. This certificate it presented to the comptroller of the county for audit and allowance, and also presented a draft on the treasurer of the county for a like amount, which it requested the comptroller to sign. This the comptroller declined to do, and rejected the claim, on the sole ground that the contract was void, and that the petitioner had not given such a bond as the contract provided for. The petitioner now asks a peremptory writ of mandamus commanding the comptroller to perform the acts in question.

[1, 2] The purpose of the writ of mandamus is to compel official action. When the duty sought to be enjoined is solely of a ministerial character, the court can direct the performance of the act, but when judicial, involving the exercise of discretion, all the power the court has is to command the exercise of such discretion. People ex rel. Harris v. Commissioners of Land Office, 149 N. Y. 26, 43 N. E. 418.

[3] But a public officer invested with auditing powers has no right to arbitrarily refuse an audit, and where, upon the conceded facts, it is his duty to make such audit, they are of a ministerial character, and may be compelled by mandamus. Matter of Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115; People ex rel. Harris v. Commissioners of Land Office, 149 N. Y. 29, 43 N. E. 418; People ex rel. Empire City Trotting Club v. State Racing Com., 190 N. Y. 33, 82 N. E. 723; People ex rel. Lodes v. Health Dept., 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894. Thus mandamus lies against a public officer when there is a clear legal right and he refuses to perform his duty. Matter of Dental Society v. Jacobs, 103 App. Div. 86, 92 N. Y. Supp. 590; People ex rel. Lentilhon v. Coler, 61 App. Div. 223, 70 N. Y. Supp. 482; People ex rel. Gaslight Co. v. Common Council, 78 N. Y. 56.

When the board of supervisors refuses to audit a legal claim on the ground that it is illegal, mandamus will lie. People ex rel. Otsego County Bank v. Supervisors, 51 N. Y. 401; Hull v. Supervisors, 19 Johns. 259, 10 Am. Dec. 223. And the writ lies where there is no question of fact as to amount of claim and the rate of compensation is fixed by undisputed contract. People v. Supervisors, 56 Hun, 459, 461, 10 N. Y. Supp. 88; Boyce v. Board of Supervisors, 20 Barb. 294; People v. Board of Supervisors, 89 App. Div. 152, 155, 85 N. Y. Supp. 284. So, also, when the board of supervisors refuse to audit a claim, not on the ground the services were not performed, but upon a question of law as to the legality of the claim, mandamus lies. Matter of Ramsdale v. Supervisors, 8 App. Div. 550, 40 N. Y. Supp. 840: People v. Board of Supervisors, 66 Hun, 633, 22 N. Y. Supp. 1110; People ex rel. Slater v. Smith, 83 Hun, 432, 436, 31 N. Y. Supp. 749.

[4] The question, therefore, arises whether the acts here sought to be enjoined are of a ministerial character, and hence may be commanded by mandamus. This involves to some extent the nature of the duties the comptroller is required to perform. The county comptroller holds office by virtue of chapter 466, Laws of 1909, and his duties are now defined by section 235 of the County Law (Consol. Laws, c.

182 N.Y.S.-20

11), which provides that all accounts and claims against a county for work, labor, services, merchandise, or materials shall be filed in the office of the county comptroller before being presented to the board of supervisors, and it is made his duty to examine and report upon the same before they are audited and ordered paid by the board, and before reporting the same to the board he is required to ascertain whether such accounts or claims and the prices therein are just and true and are in accordance with the contract or agreement therefor, and whether such work, labor, and services have been performed and the merchandise or materials delivered. He is required to attach to such claim or account a certificate showing the result of such examination, and advise an allowance or rejection of the same, and, if he advises a rejection, stating the reasons therefor. The board of supervisors is prohibited from auditing any claim which the comptroller advises should be rejected, except upon a two-thirds vote of all the members elected to the board.

In view of the duties thus enjoined, it seems to me the acts sought to be performed are purely of a ministerial character, involving no discretion, and therefore their execution may be compelled by mandamus. Doubtless the comptroller had a discretion to exercise in this case in determining the amount and value of the work performed, and whether the amount asked was the percentage which was due under the contract; but his refusal is not placed on any such ground, but on the sole ground of illegality in the contract and failure to give the required bond. In thus pronouncing upon the legality of the contract the comptroller exceeded the powers conferred upon him by statute, as that is not a duty which he is required to perform. Therefore, in doing so the comptroller did not perform judicial duties of a discretionary nature, and, as his return concedes the amount due under the contract, the duties he is asked to perform are purely of a ministerial character.

[5] But, while it is not for the comptroller to pass upon the validity of a contract, yet, if such contract is in fact invalid, the court will not command him to act upon the same. People ex rel. Canavan v. Collis, 20 App. Div. 341, 345, 46 N. Y. Supp. 727.

[6] This brings us to the question as to whether or not the contract in question was a valid agreement. The only point raised by the comptroller upon this subject is that it was made without advertising and competitive bidding. I am not referred to any statute or rule of law which required the same to be done in this case, but am referred solely to the local laws or rules adopted by the board itself upon that subject. It is provided by statute (Laws 1908, c. 418, § 4) that boards of supervisors shall have power to enact local laws or rules governing their own conduct and manner of doing business. Acting under the power thus conferred, the board adopted certain regulations, some of which they denominated local laws and others rules and orders. Among the local laws is contained section 6, which provides that all contracts involving expenditures of more than $200 should only be awarded after being properly advertised by the board while in session assembled, while among the rules and orders thus adopted is rule 53, which provides that no standing rule or order of the