People ex rel. Com. of Public Markets agt. The Common Council of N. Y.

litigation; then the same thing in regard to the comptroller, in every respect; but what if at the outset, the corporation counsel should decline to sue out any of these writs? Would not this commission be at last reduced to the neces sity, notwithstanding the proposition of the respondents, to take these extraordinary proceedings against some divi-, sion of the city government? and if that be true, then why not upon the immediate body whose willful perverseness is now attempting to defeat the purposes of the legislature, and the wishes of the residents of the city? Do not courts seek to avoid circuity of action? Then, upon the reason of the thing, the proposition is absurd. How stands it upon authority? This precise question was made on the return to the alternative writ in Commonwealth ex rel. Ham ilton agt. Select and Common Councils of Pittsburgh' (34 Penn. S. R. 496), carefully examined and utterly repudiated by the court. So, the opinion of the court by BRONSON, J. (pp. 460, 461), in McCullough agt. The Mayor of Brooklyn (23 Wend. R. 458), is decisive that the writ:lies. against the body upon whom the duty of "putting the necessary machinery in motion," is imposed. So, People agt. The Common Council of Syracuse (20 How. Pr. R. 521), is strong to the same point. There the act of opening the streets was an act of the corporation, but the common council was to set the machinery in motion, and accordingly the writ was issued against them. The earlier English cases upon these topics are collected in Archbold's Practice of the Crown Office, 239, 250, and in Tapping on Mandamus› (Law Lib. N. S. 142), 94.

*,

But finally, the statutes of this state put this question at rest. Chapter 603, laws of 1853, section 5 (Sess. Laws; 1853, pp. 1135, 1136), provide that no debt of the character contemplated in the act under consideration shall be contracted, except by virtue of an ordinance passed by the common council of the municipal corporation, by a vote of not less than two-thirds. There are many pro

People ex rel. Com. of Public Markets agt. The Common Council of N. Y.

visions in that statute which cannot apply to this case, but so much of the section as is here referred to, clearly' applies. Of course, no one contends that the power to pass an ordinance creating this stock or debt resides anywhere in the corporate authorities but the common council. (See Amended Charter, Sess. Laws 1857, vol. 1, p. 874, § 5.)

3. But we are told that the common council is vested with a discretion, and cannot be compelled to vote. The answer is, that in respect of this law they are vested with no discretion whatever, any more than the board of supervisors is vested with a discretion in respect to the auditing of a bill for the salary of a county officer, fixed at a specific sum by law. Here the obligation is equally mandatory. The legislature has imposed a duty which does not involve the exercise of any discretion whatever. The authorities are controlling upon this point. (The People agt. Common Council of Brooklyn, 22 Barb. S. C. R. 404; Green agt. Common Council of Syracuse, 20 How. Pr. R. 491; Commonwealth, &c. agt. Select and Common Councils of Pittsburgh, 34 Penn. S. R. 496; People ex rel. Record Commissioners agt. Supervisors of New York, 11 Abb. Pr. R. 114; School District No. 1, agt. School District No. 2, 3 Wis. R. 333; State, &c. ex rel. Ordway agt. Smith, Mayor, &c. 11 Wis. R. 65.)

4. The observations already made are a complete answer to the suggestion that the writ should run to committees of the common council. Those instruments of the common council cannot compel the bodies of which they are the servants, to perform a public duty. It is clear, in every aspect, that the order directing the writ to issue should be affirmed, with costs.

CLERKE, J. On the argument the only points taken by the counsel for the corporation, were first, that no action upon the part of the common council was necessary to the

People ex rel. Com. of Public Markets agt. The Common Council of N. Y.

creation of the stock in question; and second, that the common council owe no duty to the relators.

As to the first point. The act (Laws of New York for 1865, p. 211, § 5) directs and authorises the mayor, aldermen and commonalty of the city of New York to create a public fund or stock, to be denominated "market stock," for the amount of $75,000. Section 6 directs the comptroller of the city to prepare and issue said stock within thirty days after being required in writing so to do by the commissioners. What stock? The said stock; that is, the stock which in the preceding section the mayor, aldermen and commonalty of the city of New York are directed to create. The comptroller evidently can prepare and issue no other stock than that mentioned in the 5th section; and any action relating to any other would be null and void, and of course, the stock would be utterly worthless.

As to the point that the common council owe no duty to the relators. The language no doubt of the act, as we have seen, is "the mayor, aldermen and commonalty of the city of New York, are hereby authorised and directed to create a public fund or stock," &c. The words common council, do not appear in the act. The common council, however, constitute the only agency or instrumentality by which this behest of the supreme legislature can be obeyed. The mayor, aldermen and commonalty, can act in no other possible way in the premises than by and through the common council. They cannot compel the latter to do so. The mayor, aldermen and citizens generally, who, I suppose, constitute the commonalty, may daily raise their voices in the loudest tones to the honorable the common council, commanding them to create this stock, and the common council could laugh at them, as they have laughed at the commissioners. The only possible method by which the common council can be compelled to do so is by application to this court, which alone can issue a mandamus capable of being enforced.

6

People ex rel. Com. of Public Markets agt. The Common Council of N. Y.

This point has been frequently determined by authority. In the language of BRONSON, J., in McCullough agt. The Mayor, &c., of Brooklyn (23 Wend. 458), the writ lies against the body upon whom the duty of putting the necessary machinery in motion is imposed. In The People agt. The Common Council of Syracuse (20 How. Pr. R. 491), the act of opening the streets was the act of the corporation, but the common council had to set the machinery in motion, and accordingly the writ was issued against them.

The obligation was mandatory on them. They have no discretion in the matter as in ordinary cases of municipal legislation; they must obey the supreme legislature. (See also the Commonwealth agt. Select and Common Councils of Pittsburgh, 34 Penn. S. R. 496; Archbold's Practice of the Crown Office, 239, 250, and Tapping on Mandamus, 94, in both of which the early English cases on this subject are collected.)

The order should be affirmed, with costs.

BARNARD, P. J., concurred.

INGRAHAM, J., dissenting. I concur in the propriety of granting this writ were it not directed to the wrong parties. The statute imposes the duty of creating this stock on the mayor, aldermen and commonalty of the city of New York. This is the corporate title of the municipal corporation. They act by the common council and the mayor. No action of the one without the consent of the other, can enact the necessary laws for creating the public stock, except in case of a veto from the mayor. The mandamus directs the common council to enact the necessary law to create the stock. This they cannot do without the mayor, and they are required to do what is not in their power. I have no objection to a modification of the command in the writ, so as to require them to prepare and pass in their separate boards the necessary ordinance for that purpose, and on complying with that direction their duty in the matter is discharged,

Smith agt. Spalding.

In The People agt. The Common Council of Brooklyn (22 Barb. 404), the writ was so directed and allowed, but in that case the statute directed the common council of Brooklyn to do the act. So in the case of The People agt. Common Council of Syracuse (20 How. Pr. R. 491), the statute directed the common council after the award to pay the money.

In McCullough agt. Mayor of Brooklyn (23 Wend. 458), BRONSON, J., said, the proper remedy was a mandamus against the corporation to exercise their functions according to law. Two things are necessary, the action of the common council and the approval of the mayor, before the law can be enacted.

If the writ had been directed to the corporation, it would have been their duty to pass the law; as it is, the remedy at best will be imperfect.

NEW YORK SUPERIOR COURT.

JAMES S. SMITH, appellant agt. GEORGE R. SPALDING and others, respondents.

The decision of a motion is not to be considered as res judicata. But motions may be reheard on leave, on special occasions, but not on the same facts. A grant of leave to renew a motion rests in the discretion of the court; although on the rehearing it may be bound to take the same view of the facts as the judge who first heard it. Such an order is not appealable.

A mere oral decision of a court is of no avail without an order making it a record. It is a dangerous practice in any case, to rely on affidavits of the parties as to what a court has decided, even counsel being sometimes mistaken.

A motion to vacate an order of arrest, does not embrace a motion to reduce the bail, although it includes an application for further.or other relief. The questions involved in the two motions are entirely distinct and dependent on different facts.

Where on the rehearing of a motion new facts are produced, which are amply sufficient to make a new case, the discretion of the court is properly exercised in hearing it. And it would seem to be pretty strong evidence of the importance of such facts, where the opposite party deems it necessary to deny them in an affidavit of four pages of printed matter.