Newark post., 1915-03-10

Day V. Callow, 80 Calf. 593; State V.
Union, so N. j. L. SO; Rice V. Walker,
Al Iowa 45S.
1t is not our purpose to review these
cases. In Some of them the effort to
compel the PAYMENT OF MONEY
when there was no money with which to
pay, and for that any other reasons the
majority of the cases do not seem to be
in point. They are NOT analogous to the
case before the court.
Some of the reasoning in Smith v.
Auditor General, 45 N. w. 1876, seems ap-
plicable to the present case but there is
one important fact that differentiates it.
The relator based his right to the writ
upon the certificate of the Quarter Mas
ter General that the relator was entitled
to bounty, and one of the reasons the
Auditor General was not required to
issue warrant was that the act which
authorized the Quarter Master General
to certify or allow bounties had been re-
pealed. The court said: 1.-THE certificate
of the Quarter Master General can have
no force and effect after the law author
| izing it has been REPEALED
In the case in 81 Barb. it was a aues-
tion whether the relator had any claim
at all. No one was authorized to pass
upon or approve the claim, neither was
the Comptroller specifically required by
Statute to draw his warrant.
The case of People V. Stout, in 90
Barb. appears to be an authority for the
relator rather than the defendant.
The amount of REALTORS bill is five
thousand nine hundred and seventy dol
lars and sixty-two cents.
The defendant admits there is due the
relator the sum of four thousand eight
hundred and sixteen dollars and ninety
cents, but contends that the remainder of
his claim is not due and owing. This con.
tention is based upon that part of the
contract which provides that the Sewer
Commission is authorized to deduct from
the amount due the contractor the sum
of twenty-five dollars for each and every
day which shall elapse after the period
fixed for the completion of the work unit
it's satisfactory completion.
The defendant insists that he cannot
be compelled to issue warrant for the
amount claimed by the plaintiff because
under the contract 1t Is agreed by botl
parties thereto that no payment fol
labor and materials shall be due ant
payable until the estimate for such pay
ment is certified by the Chief Engineer
to the Commission, and that the actor
of the Engineer by which the contractor
is bound and concluded is evidenced b,
the final estimate and certificate of tn,
Engineer; that according to such fna
estimate and certificate the amount Just
ly due the plaintiff is four Thousand
eight hundred and sixteen dollars ant
ninety-two cents. This amount is ascer
tanned by deducting from the plaintiff .
bill twenty-five dollars for each day tha
elapsed after the work should have bee1
completed The final estimate was Ger
titled to the Commission before the plain
tiff S bill was approved by the Commits
) sioners and the issuance of the warran
by the defendant demanded, so that tn
only question here is whether the defend
: ant was bound to issue his warrant fo
five thousand nine hundred and sevent
, dollars and ninety-two cents, when ac
cording to the final estimate certified b.
| the Engineer the amount due the plain
, tiff was only four thousand eight hun
dred and sixteen dollars and ninety-tw
cents.
> AS we have already said, the statut
makes the Sewer Commissioners tn
judges of the correctness of the contrac
tors bill, and even though the compile
tion of the work was delayed for som
days after it should have been finished
the statute does not provide that the bi
shall be accordingly reduced it simpl
says the Commissioners are AUTHOR
1 lied to do it. 90,
BUT, ASIDE FROM THAT, TIL
STATUTE MAKES 1T MANDATOR,
ON THE DEFENDANT TO ISSUl
: A WARRANT TO THE PLAINTIFF.
WHEN HIS BILL is APPROVED b
= A MAJORITY OF THE SEWER CON
i MISSIONERS..
The motion to quash the return is SUI
d tained.