App. Div.]

First Department, July, 1920.

finance the concern and that he had ample funds in the bank with which to do it. It appears from the testimony of Mr. Hoops, the defendant, that he paid over large amounts of money from time to time for the use of the business of the Columbian Marble Company.

As already remarked, what amount he paid out the trial justice did not permit him to state. The defendant testified at the trial that he knew nothing of any attempt on the part of the plaintiff to hold him personally liable for the payment of its bill against the Columbian Marble Company until he received the complaint, three years after his interview with plaintiff's president.

The court fully explained to the jury the elements which must be considered in a case of fraud. Among these the court stated that the jury must find that the representation of the defendant to the plaintiff was made with the intent to cheat and defraud the plaintiff. There was sufficient evidence in the case to justify the jury in finding that there was no such intent and that defendant perpetrated no fraud upon the plaintiff.

Furthermore, an examination of the statements constituting the alleged fraudulent representations, above set forth, reveals that the only material statement of fact appearing therein is that the defendant "had arranged for the moneys with which the bills would be paid." Unless this can be construed as a declaration that Hoops was under a contract obligation with the Columbian Marble Company to furnish it such funds, as respondent contends, it is not a misstatement of any fact. It is perfectly consistent with a construction that Hoops at that time possessed funds sufficient to pay the bills. It is not shown that such was not the case.

It must be borne in mind that defendant did not guarantee the account and can only be held upon a representation which he knew at the time was false.

If for reasons happening in the future defendant in good faith refused to finance the Columbian Marble Company, such future conduct is not conclusive evidence of a past fraudulent representation. It was for the jury to say whether upon the proofs the defendant was guilty of fraud.

It is well settled that the verdict may not be set aside

First Department, July, 1920.

[Vol. 192.

simply because the court, upon the evidence before it, may not have reached the same result as that which the jury reached.

The order setting aside the verdict should be reversed, with costs, and the verdict as rendered by the jury should be reinstated and judgment ordered to be entered thereupon, with costs.

CLARKE, P. J., and SMITH, J., concur; DOWLING and PAGE, JJ., dissent.

Order reversed, with costs, verdict reinstated and judgment ordered to be entered thereupon, with costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK DOCK COMPANY, Respondent, v. JOHN H. DELANEY, as Transit Construction Commissioner, Appellant.

First Department, July 2, 1920.

Municipal corporations - mandamus-right to alternative writ to compel certification of voucher by transit construction commissioner of city of New York to comptroller of city for amount due under contract.

The relator which had granted certain rights and easements to the city of New York for the purpose of the construction and operation of a subway line under a contract with the Public Service Commission, and which claims that there is a certain amount due under said contract, is entitled to an alternative writ of mandamus directing the defendant, the transit construction commissioner, to show cause why he should not certify a voucher to the comptroller of the city of New York, pursuant to the provisions of the Rapid Transit Act, though the claim is disputed, to the end that a determination may be had of the matters in dispute, in order to enable the relator to put itself in a position to become entitled to a certificate.

APPEAL by the defendant, John H. Delaney, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1920, granting relator's application for an alternative writ of mandamus.

First Department, July, 1920.

App. Div.]

Joseph F. Maguire of counsel [Louis C. White with him on the brief], for the appellant.

Martin A. Schenck of counsel [Charles E. Hotchkiss with him on the brief], Davies, Auerbach & Cornell, attorneys, for the respondent.

GREENBAUM, J.:

The defendant appeals from an order granting the application of the New York Dock Company for an alternative writ of mandamus, by which the defendant is directed to show cause why he should not certify a voucher pursuant to the provisions of the Rapid Transit Act (Laws of 1891, chap. 4), as amended,* in favor of the relator for the sum of $21,000, with interest on $9,000 thereof from the 6th day of August, 1918; on $9,000 thereof from the 6th day of February, 1919, and on the remaining $3,000 from the 18th day of December, 1919, by reason of the claim asserted by the relator upon the following state of facts.

It appears that the Public Service Commission entered into a contract with the New York Dock Company, pursuant to which the latter, in consideration of the payment to it of the sum of $300,000 by the city of New York, granted certain rights and easements to the city for the purpose of the construction and operation of the Seventh Avenue-Lexington Avenue Subway line. There was a condition in the grant of conveyance to the effect that, in the event that the construction and equipment of said railroad shall not be completed by the 6th day of February, 1918, all the rights including the removal of buildings shall continue until such completion, "but in that event the City shall be required to pay interest at and after the rate of 6% per annum, payable semi-annually upon the sum of $300,000" during the period of occupancy.

The relator alleges that construction and equipment of the Rapid Transit railroad were not completed on the 6th day of February, 1918, or during the immediately ensuing period of twelve months, or on the 5th day of April, 1919, and that

* See Laws of 1891, chap. 4, § 10, as amd. by Laws of 1912, chap. 226; Id. § 37, subd. 1, added by Laws of 1894, chap. 752, as amd. by Laws of 1915, chap. 544.— [Rep.

First Department, July, 1920.

[Vol. 192. the city actually occupied the premises described in the deed and as therein provided from the 6th day of February, 1918, to and including the 5th day of April, 1919; and it is for such occupancy that the demands above set forth are based.

The relator heretofore made an application for a writ of peremptory mandamus to compel the respondent to certify the voucher in question. The court below denied the motion, stating: "It is my view that the deed is not ambiguous. It provided that the relator shall receive interest on the sum of $300,000 during the period that the occupancy continued beyond February 6, 1918. The petition fails to show that the occupancy continued beyond that date."

Upon appeal this court affirmed the order without opinion, Mr. Justice PAGE dissenting (People ex rel. New York Dock Co. v. Whitney, 189 App. Div. 931). The relator then made a motion for a writ of alternative mandamus upon papers which amplified the facts of occupancy and set forth that the city of New York actually occupied the premises in question from February 6, 1918, to April 5, 1919, and that for a considerable portion of this time a wire was stretched across the entrance to this slip to which there was attached a sign reading: "Closed by order of the Public Service Commission."

In its answering papers the defendant, appellant, denied that the city actually occupied the premises during the time mentioned and alleged that the Public Service Commission gave due consideration to relator's claims and that they were rejected as being without merit, and that the relator was not entitled to a certification of the voucher.

The appellant also claimed that the relator has an adequate remedy at law and that "the preparation and forwarding by said Commission or by the defendant to the Comptroller of the City of New York of a voucher or vouchers is not a condition precedent to the proper determination of the claims of the relator herein as against the City of New York and is not a condition precedent to such right, if any, as said relator may have to recover compensation, damages or redress as against the City of New York on account of the matters claimed in said affidavit." The question thus arises as to whether the alternative writ of mandamus was properly allowed. The relator relies upon People ex rel. Cranford Co.

App. Div.]

First Department, July, 1920.

v. Willcox (153 App. Div. 759; affd., 207 N. Y. 743) in support of its right to the writ. In that case, in which a peremptory writ was granted, the contract between the relator and the Public Service Commission provided, as the opinion shows: "That in case there should be a dispute as to whether any work required was within the contract price, the contractor should do the work as ordered, leaving the question of its right to be compensated therefor as extra or additional work to be decided by arbitration in the manner elaborately provided for in the contract."

It also appeared that the arbitrators in due course made an award to the relator of the sum of $59,867.64 with interest, but that the Commission thereafter refused to certify this amount to the comptroller of the city of New York for payment. Upon such refusal the relator asked for a writ of peremptory mandamus to compel the issuance of such certification. The Special Term denied the motion upon the sole ground that mandamus was not a proper remedy. Upon appeal to this court the order was reversed and the motion granted.

The appellant argues that the Cranford Case (supra) may be differentiated from the facts here appearing in that the court there was considering the method of the payment of a claim which had been adjudged to be valid in the manner agreed to by the parties under their contract and, that, therefore, the procurement of the voucher was a condition precedent to payment by reason of the provisions of the agreement.

If the procurement of the certified voucher is a condition precedent to payment by the city in the case of the refusal of the Commission to certify an adjudicated claim, it is difficult to understand why a certification is not also a condition precedent in the case of a disputed claim. The only difference between the two cases is that when the claim has been adjudged between the contractor and the Commission, a peremptory writ should issue in case of a refusal to certify; and where the claim is disputed, an alternative writ should be allowed in order that an adjudication of the claim may be had for the purpose of determining what certificate, if any, the contractor is entitled to.