(78 Hun. 321.)

#### PEOPLE ex rel. KETELTAS v. FITCH, Comptroller.

(Supreme Court, General Term, First Department

May 18, 1894.)

Makdamüs—Enforcement of Claim agaimst New York City—Park Award.

Under Laws 1885, c. 173, providing that the person in whose favor an award has been made in a proceeding to open a park shall not have an action at law against the city of New York, but may require the officers to raise the money necessary to enable the comptroller to pay the award, mandamus will lie to compel the issue of bonds to pay such claim where no money has been provided, though the comptroller has been authorized to issue bonds.

Appeal from special term, New York county.

*164Application by Henry Keteltas against Asbbel P. Fitch, comptroller; for peremptory writ of mandamus. The writ was granted, and defendant appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

David J. Dean, for appellant.

Geo. G. De Witt, for respondent.

VAN BRUNT, P. J.

Pursuant to an act of 1884, proceedings were initiated to acquire title to lands for a public park in the Seventh ward; and such proceeding was thereupon had that the report of commissioners was confirmed on the 17th of July, 1893. 'Certain awards having been made to the respondent for land taken for said improvement, payment thereof was duly demanded on the 18th of November, 1893; and it not having been made, and no bonds issued, and no money provided to pay the award, notwithstanding the fact that the board of estimate and apportionment had authorized the comptroller to issue said bonds, the respondent brought these proceedings against the comptroller to compel, such issue.

It is urged by the appellant that the writ of mandamus will not lie, because there is an adequate and certain remedy at law. If such were the fact, undoubtedly the objection would be well taken. But we do not see how any remedy at law can exist, unless chapter 173 of the Laws of 1885 is unconstitutional, in so far as it provides that the person in whose favor awards, costs, and expenses may be made and allowed in proceedings to open any street, road, avenue, boulevard, public square or place, park or parkway, shall not have an action at law against the city of New York, but may require the officers of said city to raise, as therein provided, the money necessary to enable the comptroller to pay such award, costs, and ex-' penses; such provision seemingly repealing the right to bring an action conferred by section 992 of the Consolidation Act.

It seems also to be attempted to review the .action of the commissioners of estimate and assessment; it being claimed that their awards were improper, they not having proceeded in making the same according to the provisions of law. But it is perfectly clear that the point attempted to be raised is not jurisdictional; and, though it might have been availed of upon appeal from the order of confirmation, the award cannot be attacked in this collateral proceeding.

It is further urged that under the act in question the duty of the comptroller is due to the mayor, etc.; that he owes no duty to the relator, and therefore no mandamus will issue, at the suit of the relator, to compel his action. The express provisions of the Laws of 1885, above referred to, are that the person entitled to the award may require the officers of the city to raise, as therein provided, the money necessary to enable the comptroller to pay the award. The board of estimate and apportionment has done its duty; the comptroller has refused to issue the bonds; and the relator has a right to the aid of the court, in compelling the comptroller to fulfill *165the duty which has been imposed upon him. Unless this right exists, the relator is absolutely without remedy to recover the amount which has been awarded to him in lieu of his property which the city is now enjoying. We think that the order appealed from should be affirmed, with costs. AE concur.