Application was made to the Supreme Court for a common-law writ of mandamus requiring the defendant, as comptroller of the city of New York, to draw his warrant *Page 8 for a sum that the relator claimed to be due him. The Special Term denied the writ, the Appellate Division affirmed, and, as it does not appear in the order that the writ was refused on a question of law only, this court must assume that it was denied in the proper exercise of the discretion of the Supreme Court, which cannot be reviewed here. (People ex rel. D.L.I. Co. v.Jeroloman, 139 N.Y. 14; People ex rel. Jacobus v. Van Wyck,157 N.Y. 495; People ex rel. Steinson v. Board of Education,158 N.Y. 125; Matter of Hart, 159 N.Y. 278; People ex rel.Rice v. Moss, 161 N.Y. 623; People ex rel. Rodgers v.Coler, 166 N.Y. 1; People ex rel. N.Y. Harlem R.R. Co. v.Board of Taxes, 166 N.Y. 154.)
We are not permitted to look into the opinion of the Appellate Division to ascertain the grounds upon which it proceeded, but in the case before us the conceded facts establish that the Supreme Court could have denied the writ in the exercise of its discretion.
The comptroller of the city of New York resisted the payment of the claim on two grounds based on the relator's alleged violations of the Labor Law, viz.: (1) In that he compelled or allowed his employees to labor more than eight hours a day, and (2) in that he had not paid his mechanics, workmen and laborers the prevailing rate of wages. This last ground is removed from the case by the recent decision of this court in People ex rel.Rodgers v. Coler (166 N.Y. 1), where it is held that the Labor Law, so far as it relates to the prevailing rate of wages, is unconstitutional.
This leaves but one issue to be tried, to wit, the constitutionality of the provisions of the Labor Law of 1897, as amended, which prohibits more than eight hours of work in any calendar day under contract with the state or a municipal corporation.
The issue presented in this case is one of great importance, and it was clearly within the discretion of the Supreme Court to remit the parties to a common-law action.
The appeal should be dismissed, with costs. *Page 9