The relator moved for a peremptory writ of mandamus to compel the comptroller to deliver to him a warrant on the city chamberlain for the payment of $2,863. In his affidavit he alleges that on *110February 5, 1899, he entered into a contract with the city of New York whereby he undertook to grade West One Hundred and ■ Thirty-fifth street, which contract provided that seventy per cent ■ of the amount earned thereunder each. month, if not less than ■.$1,500, was to be paid; that the decision of the chief engineer of . highways as to the work, done and materials furnished was, as to the contractor, final and conclusive; that he'obtained from the commissioner of highways on April 23, 1900, a certificate showing .that for ■ the. month of March, 1900, there was earned the sum of $4,090, of •which seventy per cent, amounted to $2^8.63 ; that he filed such certificate with the comptroller who drew up a warrant on the chamberlain for that amount, but who, on demand, refused to deliver said warrant.
The comptroller’s affidavit denies that the contract referred to was duly carried out by the relator, and referring to the provision of the contract that in employing labor on the work to be done, the “ Labor Law ” (Chap. 415, Laws of 1897, as amd. by chap. 567, Laws-of 1899). should be complied with, cites section 3 of that law, and alleges that the relator violated the obligation imposed upon him, in that he does not pay the prevailing rate of wages to his employees. Further, the answering affidavit alleges that the relator has an adequate remedy at law. The judge at Special Term denied the motion' for the writ of mandamus, and from the order so entered the relator appeals.
We: think the Special Term was right in'refusing to grant a man.damus. The respondent, in addition to the other. objections to the granting of the writ, insisted that the relator had an adequate remedy ■at - law. Upon this point it is said in People ex rel. Beck v. Coler (34 App. Div. 167): “ The first claim of the appellants is that the .relator’s remedy, is by action and not by mandamus. The rule that ■a mandamus will not be granted where the party has a remedy by action is one addressed to the sound discretion of the court and is-not of universal application. * * * Where the right of a party to payment from the city is clear, and there are funds on hand applicable to such payment, the court may and will, in the exercise of a sound discretion, compel by mandamus, a ministerial officer to audit and pay the claim; though if the city itself repudiated or denied the existence of the obligation the rule would be different.”
*111Applying this principle to the facts here, the question to be determined is whether or not, in the exercise of a sound discretion, it is proper to grant to the relator a writ of mandamus. That serious legal and constitutional questions are involved is evident from the opinion of Mr. Justice Ingraham and from the opinion of the learned judge at Special Term, who reached the conclusion that the relator was not only not entitled to the remedy of mandamus, but that on the merits he was not entitled to the payment under the contract, by reason of his failure to comply with the provision thereof relating to the Labor Law. Where such serious questions of law, depending to some extent upon disputed questions of fact, are involved, they should be tried in an action rather than disposed of upon affidavits on a motion for a mandamus.
It here appears that after the certificate of the engineer for work done during the month of March, 1900, was presented to the comptroller, steps were taken, to prepare and deliver a warrant in payment, and these steps had advanced to the point where the comptroller was ready to deliver such warrant when his action was stayed by a notice served upon him in the form of a letter dated April 19, 1900, and signed “ P. McMahon,. Master Workman D. A. 49, II. of L.,” which stated that the relator was not paying the prevailing rate of wages to drillers and engineers on the work, and protested against any money being paid until he had complied with the law. This, so far as appears, was the first notice that the city had that the relator had been violating his contract, and thereafter an investigation was made, and, as the result thereof, the comptroller swears, upon information and belief, “ that the relator herein has not and does not pay the prevailing rate of wages to his employees in the locality where the work is to be performed.” And the comptroller then refused to deliver the warrant for" the reason that the Labor Law expressly provides (§ 3, as amd. by Laws of 1899, chap. 567): “Ho such person or corporation shall be entitled to receive any sum, nor shall any officer, agent or employee of the State or of a municipal corporation pay the same or authorize its payment from the funds under his charge or control to any'- such person or corporation for work done upon any contract which in its form or manner of performance violates the provisions of this section.”
*112In view of this express' provision, it will be seen that, in handing the warrant over to the relator there was something more involved than the doing of a merely ministerial act, and, as correctly urged by the respondent, “it is a rather startling doctrine that a public official can be compelled by mandamus to ignore or expressly violate the provisions of a statute.” Accepting as true, therefore, as wé must on this appeal, the facts stated in the opposing affidavit, it would appear that the relator has not only been guilty of a. breach of his contract, but that he has deliberately offendéd against the statute. And it is evident that his right under any form of remedy to obtain payment is not only disputed and denied by the respondent, but placed in serious doubt.
Moreover, a disposition of the questions upon a summary applica- . tion such as this would deprive the respondent of a proper legal advantage which he would have if the relator is compelled to resort to his remedy by action. Thus it would be necessary for the relator to allege in the complaint, and, if the allegation were denied, to prove at the trial, that he had faithfully performed all the terms and conditions of his contract with the city, including the provision therein by which he agreed to comply with the Labor Law. Upon his failure to make such proof, his right to the amount of the payment here sought would be seriously imperilled.
Whether the construction placed on the Labor Law by Mr. Justice Leventbitt at Special Term or by Mr. Justice Ingeaham on this appeal shall ultimately prevail, it is unnecessary for- us now to determine, as we are here concerned only with answering the question whether, upon the facts presented, the relator’s remedy is by mandamus or by action. For the reasons given, we think that the relator should be . confined to his remedy by action to the end that all the questions, both’ of law and fact, -may be formally and deliberately considered upon a trial rather than here upon affidavits on- a • summary application for a mandamus.
Vae Beunt, P. J., concurred.
Order reversed, with costs and disbursements, and- motion granted, with fifty dollars costs.