The reasoning by which the decision about to be made is sought to be supported fails to persuade me that it is other than a judicial encroachment upon legislative prerogative; for it is that and nothing less if the statute does not offend against either the Federal or the State Constitution. If the statute, which seems to be regarded by some as vicious in its tendency, attempted to regulate the question of wages as between citizens of the state so as to affect even in the slightest degree the basis on which one citizen should contract with another, then not only would much of the discussion which this statute has invoked be relevant, but the decision about to be made would be unquestionably sound. The legislature, however, intended nothing of the kind, and the statute not only omits to express any such purpose, but it is so carefully guarded as to leave no room for doubt that the legislature, appreciating the limits of its authority, intended to and did simply provide with certainty that those who work directly for the state or upon public works within the state, shall receive that which may be termed going wages in the locality in which any particular public work is being carried on as will at once appear from a reading of the statute, so much of which as is germane to the question under discussion being set out in the statement of facts. In other words, the legislature, which is vested with the power to direct the conduct of the business *Page 26 operations of the state, by this statute has not only declared it to be the policy of the state as a proprietor to pay the prevailing rate of wages, but has enjoined upon its several agents and agencies the duty of executing this policy. An attack upon this statute, therefore, assails the right of the state as a proprietor to pay such wages as it chooses to those who either work for it directly, or upon any work of construction in which it may be engaged.
No one has presumed to challenge the right of an individual either to pay the prevailing rate of wages in his locality, or, if he concludes to have his work done by contract, to refuse to award it to a contractor who will not agree to pay the going wages to all employees that may be engaged upon the work. But the state seems to be regarded in some quarters as having less power as a proprietor than an individual, so that what an individual may contract to do in the performance of his own work, the state itself may not do when it assumes the role of proprietor and attempts the construction of important public work.
Now, having called attention to the fact that the statute by its terms is expressly limited to laborers employed upon the work of which the state, in its entirety or through some subdivision thereof, is the proprietor, we come to the question whether there is any provision of either the Federal or State Constitution that so far restricts the power of the state in constructing its buildings or other public works, that it has less liberty of action than one of its citizens. That it has, to say the least, as much power as a proprietor as has any of the individuals of which its citizenship is comprised, would seem to be a self-evident proposition. But as evidence is not wanting that it is not so regarded by others the subject must have some consideration. In 1889 the legislature provided by statute that from and after the passage of the act the wages of day laborers employed by the state, or any officer thereof, should not be less than two dollars per day. (Chapter 380 of the Laws of 1889.) It is difficult to imagine from what source the idea could have been born *Page 27 that this statute was unconstitutional, in view of the fact that it was known of all men that the legislature had always fixed the compensation of its executive, legislative and judicial officers, and had provided from the beginning what compensation, if any, should be paid to all of the county and city officers throughout the state. Indeed, the compensation for every kind and character of service whatsoever had always been fixed either by the legislature directly, or through agencies created by it, the original source of power in all cases being the legislature. Nevertheless, there were those who conceived the absurd idea that there was some distinction between the compensation for day laborers and the compensation for all others engaged in the service of the state, and so the demand of one Clark, who was employed upon the canals, for the compensation fixed by the legislature, was challenged and finally came to this court, where the question was put at rest by a unanimous decision, which held that There is no express or implied restriction to be found in the Constitution upon the power of the legislature to fix and declare the rate of compensation to be paid for labor or services performed upon the public works of the state. That legislation is doubtless open to criticism from the standpoint of sound policy and expediency, but the courts have nothing to do with these questions so long as it is not in conflict with the Constitution, and we think that a general law regulating the compensation of laborers employed by the state or by officers under its authority, which disturbs no vested right or contract, was within the power of the legislature to enact, whatever may be said as to its wisdom or policy." (Clark v. State of N.Y., 142 N.Y. 101. )
Now, certainly it need not be argued that, if the Constitution contains no restriction "upon the power of the legislature to fix and declare the rate of compensation to be paid for labor or services performed on the public works of the state," there is nothing in the Constitution to restrict the power of the legislature in declaring that "the rate of compensation to be paid for labor or service performed on the public works of *Page 28 the state" "shall (in the language of the statute) not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which labor is performed, in its final or completed form is to be situated, erected or used." So, if authority be needed, we have the authority of this court that the legislature has the power to provide that the policy of the state shall be to pay the going rate of wages in the locality in which a public work is to be done and to command its agents to obey its directions in that regard. For illustration: Were it now engaged in the erection of a new capitol, the public officer or officers having in charge the construction by appointment of the legislature, would, under the authority of the Clark case, be obliged to pay the prevailing rate of wages in Albany, and if, in the course of construction, it should be determined to do some part of the work by contract, as was the case during the last year of work upon the capitol, those having in charge the construction would be obliged to provide in the contract that the contractor should pay the prevailing rate of wages in Albany. Of course, a contractor would not be obliged to accept a contract under such terms; but certainly would do so if he wished the work, for the state as proprietor would have the right to impose any terms it might choose as a condition of awarding the contract, just as an individual might do. Terms might thus be imposed which would be wise or very foolish for both the state and the contractor, in the estimation of the latter; but it is the proprietor's right to be unwise if he so wills, in which respect the state is perhaps both in theory and practice on an equality with its citizens. The provision in the contract requiring, in effect, that he should pay the going wages would, of course, interfere with his liberty to hire men for lower wages. So a provision that he must use a certain brand of cement which is no better and costs more than other brands would interfere with his liberty to buy first class cement at a lower price than the brand named. A provision that some or all of the figure work cut out of *Page 29 stone should be done by workmen from Italy, would perhaps interfere with the employment at less expense of men of equal or greater skill at home who could do equally good or better work, and to that extent his liberty to so contract as to make a greater profit for himself, without injury to the proprietor, would be interfered with; but it is interfered with only because he assents to the proprietor's wishes and contracts that it shall be so, and hence his liberty is not interfered with at all within the meaning of the Constitution; for he has solemnly covenanted in his agreement that he shall not be at liberty to do anything in the course of the performance of the contract that shall be contrary to the wishes of the proprietor as expressed in the written contract.
I have yet to hear an argument from any quarter offered for the purpose of showing that the state as a proprietor could not in the erection, for instance, of a new capitol, fix the wages to be paid by its contractors, provide that its sculptors should come from Italy, its decorators from Paris, its stone from specific quarries in Massachusetts and its cement from England, when perhaps better results could be obtained should only residents of this state be employed and the material purchased within its own borders. But it is said that this statute goes further and applies not only to the work undertaken by the state at large, but also to the public works carried on in the several municipalities of the state, the particular case before the court growing out of a contract made between the city of New York and the relator, by which the latter agreed to regulate and grade West 135th street in that city from Amsterdam avenue to the Boulevard. The authority of the state, however, is supreme in every part of it and in all of the public undertakings the state is the proprietor. For convenience of local administration the state has been divided into municipalities, in each of which there may be found local officers exercising a certain measure of authority, but in that which they do they are but the agents of the state, without power to do a single act beyond the boundary set by the state acting through its legislature. *Page 30 Charters are given to cities by means of which are created what are known as municipal corporations; but the creation is solely for the purpose of doing the work of the state in the particular locality affected, and in the creation of these agencies the legislature designates the number of officers, determines what they shall be called, prescribes what particular portion of the municipal work each shall do, fixes their compensation and provides a method by which shall be chosen a proper amount of assistance, clerical and otherwise, to perform the work, and from time to time enlarges or restricts the fields of labor of the several officers; it also from time to time by special enactment authorizes undertakings of large public importance, not contemplated perhaps at the time of the granting of the charter or at the time of a general revision of it. If the legislature becomes dissatisfied with the general working of a charter it may change it or create a new one, for it is possessed of supreme authority to provide the method by which the municipal affairs shall be conducted and to determine what great public works, if any, shall be undertaken. If it shall determine that the city is in need of a large supply of pure and wholesome water, the legislature, and the legislature alone, may provide the machinery by which that result may be accomplished. In the doing of it the legislature may devolve the administration of the details of the work upon the local municipal officers already in existence, or it may select another agency without even consulting the wishes of either the taxpayers or the voters of a city, as was the case in the building of the new aqueduct, which was authorized by chapter 490 of the Laws of 1883. The act was entitled "An act to provide new reservoirs, dams and a new aqueduct, with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water." It contained full authority for the execution of this vast undertaking, which was expected to and did cost the city of New York very many millions of dollars, under the direction of six commissioners named in *Page 31 the act, upon whom was devolved both the power and the duty of effectuating the purpose of the legislature as expressed in the statute. The Constitution has, of course, imposed some restrictions upon the legislative power, such, for instance, as that the legislature shall not authorize the construction of a street surface railroad without the consent of the local authorities and fifty per cent of the abutting property owners, or in lieu thereof the consent of the Appellate Division of the Supreme Court. But prior to the incorporation of such a provision into the Constitution, the legislature had the power, and until 1850 exercised it, of authorizing the construction of street surface railroads without the consent of either the local authorities or the property owners, as will appear from an examination of the statutes referred to in Ingersoll v. NassauRailroad Company (157 N.Y. at page 466).
Similar instances almost without number might be multiplied, all of which would serve as illustrations merely that the state acting through its legislature has absolute power and control over all the public works within the state, undertaken and carried on with public funds, whether the work be paid for by a municipality or by the state at large, and that those who let the contracts, superintend the construction, audit the bills and pay them, are in such work but the agents of the state, whether the agency be created by the provisions of a charter or by special enactment. If authority be needed in support of this proposition, it may be found in Williams v. Eggleston (170 U.S. 304). At page 310 the court says: "A municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature."
Authority to the same effect may also be found in cases in this court of which Mayor v. Tenth National Bank (111 N.Y. 446) is a type. In that case the question presented was whether the city of New York could be compelled by the legislature to pay to the Tenth National Bank moneys that it *Page 32 had advanced without authority of law to the county commissioners which were in part misappropriated by them, the balance of the moneys being used in the construction of the court house in New York city. The act of the legislature requiring the city to pay to the bank the moneys advanced by it was upheld in this court, and in the course of the opinion the court said: "Municipal corporations are creatures of the state and exist and act in subordination to its sovereign power. The legislature may determine what moneys they may raise and expend, and what taxation for municipal purposes may be imposed; and it certainly does not exceed its constitutional authority when it compels a municipal corporation to pay a debt which has some meritorious basis to rest on."
Other authorities in which the proposition is in effect either decided or asserted that a municipal corporation is simply an agency of the state for the conduct of the affairs of government, and, therefore, subject to the control of the legislature in all respects except as expressly limited by the Constitution, are:In re Protestant Episcopal School (46 N.Y. 178); Terrett v.Taylor (9 Cranch, 43); Payne v. Treadwell (16 Cal. 221);Jones v. Town of Lake View (151 Ill. 663); Mayor, etc., ofFrederick v. Groshon (30 Md. 436); Groff v. Mayor, etc., ofFrederick City (44 Md. 67); State Bank v. Madison (3 Ind. 43); City of Paterson v. Society for E.U.M. (24 N.J.L. 385);State ex rel. Cleveland v. Board of Finance, etc. (38 N.J.L. 259) ; In re Dalton (59 Pac. Rep. 336).
In the latter case the petitioner was arrested for violating the provisions of chapter 114 of the Laws of 1891 of the state of Kansas, which provided that eight hours should constitute a day's work for laborers, workmen, mechanics and other persons employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality in the state. He sought to be relieved from trial through habeas corpus proceedings, claiming that the act was unconstitutional. The court thought that the statute was constitutional, and in the course of the opinion the court said:
"Whatever orders the state may give directly to its own *Page 33 agents it may require of its political subdivisions, instrumentalities of said government, such as counties, cities, townships. These subdivisions are merely involuntary political or civil divisions of the state, created by statute to aid in the administration of government. `A county is one of the civil divisions of a country for judicial and political purposes, created by the sovereign power of the state of its own will, without the particular solicitation, consent or concurrent action of the people who inhabit it; a local organization, which for the purpose of civil administration, is invested with certain functions of corporate existence.' It has been held competent for the legislature to establish a state road and cast the cost and expense thereof upon the county in which the road lies without the consent of the officers or people of the county. And, in like manner, it may require the county to build a certain kind or number of bridges at specified places, another county to build roads in a particular locality, and another to build public buildings; and for this and other public purposes the counties and other municipalities could be required to levy a tax, and make other provisions for the payment of such improvements. Indeed, everything relating to the management of counties, cities and townships not defined and limited by the Constitution may be taken away by the state, acting through its legislature; and as to these political divisions and their agents, the legislature has the same power that it possesses over state officers. We conclude, therefore, that the statute under consideration is a mere direction of the state to its agents, and a proper exercise of its power in that respect."
If the views so far expressed be sound, it would seem to follow that the position taken by the state in enacting this statute is precisely like that of an individual who for any reason determines that if it be a little more than honest, as that term is usually employed, it is not more than just to pay for a thing what it is fairly worth, and that the principle should be applied as well to the compensation of labor as to the payment for material, and hence decides that in construction work *Page 34 he will pay the market price. The state having determined upon such a course of action by this statute, directs its agents and agencies, wherever throughout the state they may be situated, that in the doing of a public work they shall pay the going wages whenever the work is to be done by day's work, and whenever it is to be done by contract, then the agent, wherever situated, shall put into the contract that it executes by authority of the state a provision that the contractor shall pay such rate.
There are no authorities in this state that militate against the position that I have taken. On the contrary, such as there are support it. In People v. Warren (77 Hun, 120) the defendant had been charged before a police magistrate with a violation of section 504, chapter 105 of the Laws of 1891, entitled "An act to revise the charter of the city of Buffalo." That charter provided, among other things, that "in contracting for any work required to be done by the city, a clause shall be inserted that the contractor submitting proposals shall bind himself in the performance of such work not to discriminate either as to workmen or wages against members of labor organizations, or to accept any more than eight hours as a day's work, to be performed within nine consecutive hours." The defendant having been convicted, an appeal was taken to the General Term, fifth department, where the argument was made that the statute was unconstitutional because offending against the provisions of section 1, article 14 of the Constitution of the United States, and of the provisions of section 1, article 1 of the Constitution of the State of New York. It was held by a unanimous court that the statute was constitutional and the judgment of conviction was affirmed. Subsequently an unsuccessful attempt was made to secure a different result through the instrumentality of a writ of habeas corpus. I take an extract from the opinion, which was written by Judge HATCH, because it is in point on the next proposition that I propose to discuss. "It is said that defendant is an independent contractor and consequently the rules we have invoked have no application to the case. If this were conceded *Page 35 it might not be possible to answer the claim. But the assertion itself, as I view the facts, is far from being true. In the sense that the defendant is doing work for the city of Buffalo to furnish all material and labor in making a public improvement for a given sum, it is a fact. But that it is relived from the obligations imposed by the state upon the city of Buffalo and assumed by it is not true as matter of law. * * * The city said to the defendant and to all other contractors when it invited the bids for the performance of the work, the statute is one of the conditions which must be complied with and an obligation which must be assumed by the contracting party. The defendant was not obliged to bid. The conditions imposed applied equally to all who should bid. The act of bidding was with full knowledge and voluntary. Under these conditions defendant made its bid and when awarded the contract voluntarily executed the same and assumed the obligations imposed upon the city by the statute. How can it be said that he was an independent contractor, freed of obligations? He was an independent contractor, but he is not independent of the obligations imposed by the contract." (Peopleex rel. Warren v. Beck, 10 Misc. Rep. 77.)
It should also be said before passing to the consideration of the contract that the judge before whom this matter came at Special Term was of the opinion that the act is constitutional, and while there was a difference of view in the Appellate Division as to certain questions, not one of the judges of that court expressed an opinion that the state in so far as it directed its agents to insert a provision in the contract that the prevailing rate of wages should be paid, acted beyond its power. Indeed, in the prevailing opinion it is said: "I am satisfied that the legislature has power to prescribe the form of contracts which shall be made by municipal corporations with those entering into contracts with it. No one is bound to enter into such a contract or to do work for a municipal corporation, but when he does he must accept the terms of the contract as prescribed by law, and if he voluntarily makes a *Page 36 contract by which he is to receive pay only upon condition of his performing certain obligations or doing work that he agrees to do in a certain way, the contractor certainly cannot complain if the city refuses to pay except upon his compliance with the terms of the engagement."
Since the argument there has been evolved the notion that the few constitutional limitations upon the power of the state to control at will through legislative action all the affairs of municipalities, in some way helps out the contention of the majority that the state is not the proprietor in the grading and construction of the street in question. It seems to me that the effect of these exceptions is to prove the rule, if proof be needed, that the state can do what it chooses in respect to public improvements anywhere within its borders, whether the territory affected be within city limits or in the rural sections of the state, provided only that it does not transcend the limitations that the people have seen fit to place upon that power by means of the Constitution. That instrument will be searched in vain for any restrictions upon the power of the legislature to grade or improve highways. The legislature may provide for the building of bridges over streams separating counties, or towns, or both. It may do this at the expense of the state, or at the expense of the towns affected, or of the adjoining counties, or the expense may be apportioned in such manner as the state sees fit. It may build and improve roads at the joint expense of the state and the locality more immediately benefited by the construction of the road, or part of the expense may be assessed upon the property of individuals abutting upon the improved highway; and in cities it may determine to have streets graded and improved and the entire expense assessed upon the property in the neighborhood which is supposed to benefit by the improvement; or it may assess the entire sum upon the city, or apportion the cost between the two. But however the moneys necessary to pay the expense of such an improvement may be raised, it is the state that authorizes the improvement, selects the agency by which it is conducted and alone determines the source from which *Page 37 the money needed to pay the expense shall come, and its power in that respect has no limitation whatever.
The prevailing opinions discuss a question which is not up for decision, namely, whether the legislature has the power to provide that the municipal authorities shall pay to their employees going wages. As the discussion which that question has received is, in my opinion, obiter, I shall not refer to it further than to say that I dissent from the views expressed in relation thereto on the ground that the statute offends no provision of the Constitution when it undertakes to provide that the city shall pay the prevailing rate of wages to those who work for it. Who denies the power of the legislature to fix the rate of compensation for the mayor, the comptroller, the police commissioner, the clerk, the attendant and the messenger? If any one does I have not heard him. Why may it not then fix the rate of compensation of the engineer in charge of its heating and ventilating apparatus, its skilled mechanics or its street sweepers? Where in the Constitution is to be found the provision that so discriminates between the classes into which the public service is divided as to allow the legislature to provide certainty and stability of compensation as to the one and denies a similar power as to the other? My attention has not been called to such a provision, nor have I been able to find it after diligent search.
I have considered the constitutionality of the statute, because it has been insisted, as I think erroneously, that the feature of the statute which is in controversy here is unconstitutional. But if, on the other hand, it were to be conceded that it is unconstitutional, I do not see how it could avail this relator. If the contract were silent on the subject, and the claim made was that the contractor could not recover for work performed because he had not complied with the provisions of the statute requiring contractors to pay the prevailing rate of wages, then he would not only be in a position to attack the constitutionality of the statute, but an adjudication that it was unconstitutional would relieve him from the necessity of paying the prevailing rate of wages. But that is not this case. *Page 38 In the contract between the city and this relator it is agreed in terms that "the wages to be paid for a legal day's work, as hereinbefore defined, to all classes of such laborers, workmen or mechanics upon all such public work, or upon any material to be used upon or in connection therewith, shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality within the state where such public work on, about or in connection with which labor is performed, in its final or completed form, is to be situated, erected or used." And it was further in terms agreed that "this contract shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of the Labor Law." So that not only in terms did the contractor agree to pay the prevailing rate of wages, but the agreement also in effect made the provisions of the Labor Law a part of the contract.
Whether, therefore, the statute was unconstitutional or not, there was nothing to prevent this relator from consenting to the incorporation of the phraseology of the statute into the contract, and, when he did that and voluntarily executed the contract, as in this case, he cannot effectively plead as an excuse for the violation of his contract that, inasmuch as certain of its provisions are void when embodied in a statute, they are also void when incorporated into a voluntarily-executed contract.
While the majority of the Appellate Division agreed that the statute was constitutional in so far as it provided for the payment of the prevailing rate of wages, and also that the relator, having voluntarily executed the contract, he is entitled to payment for work done only upon condition of his performing its stipulations, still they were of the opinion that the relator was entitled to a mandamus because the officers of the municipal corporation had failed to avoid the contract prior to the institution of the proceeding.
If the conclusion of the majority was wrong in this respect, they conceded that the defendant rightly succeeded at Special Term, and, as it seems to be very clear that it was wrong, I *Page 39 shall content myself with a brief presentation of the reasons, and shall omit all reference to the question, also discussed, whether the contract became void by direct operation of the statute upon the contract and its conceded breach. If the statute purported to accomplish such a result, the court thought that it might be unconstitutional. But I shall not consider whether it does purport to accomplish such a result or whether, if it did, it would offend against the Constitution, for, as I view it, the question is not before us. Certainly it cannot affect the disposition of this matter if what the comptroller did operated to avoid the contract. It is because I think he did all that the situation required in order to enable the city to take advantage of the relator's breach of the contract that leads me to a different result than that reached by the Appellate Division, for we alike agree on the constitutionality of the statute, so far as it is involved in the proceeding and in the binding effect of every provision of the contract.
It is not easy to appreciate the argument that admits the validity of the contract; its open violation by the relator; concedes that the provision is clear and unambiguous that declares it shall be null and void in the event of such a violation, and still contends that a recovery may be had in the face of the defense urged by every legal method, viz., that the relator cannot recover because the contract has become void by his act.
What act it was necessary for the comptroller to do in order to take advantage of the defense the relator had furnished other than first to refuse to pay and afterwards to defend on the ground that the contract was void, owing to the relator's violation of it, has not been suggested. It has been found easier, no doubt, to say that the comptroller, as the fiscal officer, had to do something than to point out the thing he had to do.
It is the relator's violated agreement which entitles the defendant to claim that this contract is no longer of any effect. For it must not be forgotten that this relator comes into court admitting that he has violated the contract by failing to pay *Page 40 the prevailing rate of wages as he agreed to do, and by his contract he agreed that the effect of his failure to do so should cause the contract to become void and of no effect.
The argument that the relator is entitled to a mandamus against the comptroller because he had not avoided the contract before this proceeding was instituted, seems to me without force. It appears affirmatively that the comptroller was not informed that the relator was violating his contract until the 19th day of April, 1900, and that he set on foot an investigation for the purpose of learning the truth of the matter immediately thereafter, with the result that the information received by him was fully confirmed. Now, the certificate made by the commissioner of highways certifying to the correctness of the relator's account, showing a balance due, to secure a warrant for which this proceeding was instituted, was dated April 23rd, 1900, or only four days after the comptroller was first advised of any act leading him to suspect that the relator was violating the contract. From these facts it is apparent that there was nothing in the situation to justify the conclusion that the comptroller allowed him to go on with his work after knowledge on the part of the comptroller that it was within his power to avoid the contract on behalf of the municipality. On the contrary, it is apparent that no part of the work for which a warrant is claimed was performed after the comptroller's knowledge of the relator's default. This proceeding was instituted about three weeks afterwards, and hence it is manifest that so far as this claim is concerned the relator has nothing to complain of in the conduct of the comptroller, assuming, without admitting, that a complaint of that general character could have any legal value towards restoring to life a void contract.
This proceeding was instituted against the comptroller because he refused to deliver to the relator a warrant for the amount of the certified account. The reason for it is set up in his return, and is to the effect that the relator had executed a contract by which he had agreed that in the event of his failure to perform certain of its terms and conditions, the contract *Page 41 should be void; that he had failed to comply with such terms, and that hence the contract is void and the city not liable. Now, if there is anything else that the comptroller was bound to do under the circumstances in order to get rid of paying the amount claimed to be due under a contract that had become void, it has not been pointed out. He resisted payment both before and after the commencement of legal proceedings on the ground that the contract had become void because of the conduct of the contractor, and that is all he was obliged to do in order to relieve the city from making further payments under a void contract.
If the facts were as assumed by the learned judge at the Appellate Division, that the city authorities with knowledge of the violation of a contract which authorized the city to treat it as void nevertheless permitted the contractor to go on with his work by which the amount in question was earned, it might very well be that a court of equity would undertake to relieve a party from the loss that would otherwise result on the ground that it was the duty of the officers of the city to speak and not to hide their intentions for the purpose of getting work for nothing out of the contractor. But those considerations have no place in a proceeding by mandamus, where the relator can only succeed by establishing a clear legal right to that which he demands.
I advise a reversal of the order of the Appellate Division and an affirmance of that of the Special Term.