So far as disclosed by the record upon this appeal the relator has performed his contract for the construction of sewers and appurtenances, which was made between himself and the city of New York. By the terms of the contract payment was only to be made when the contract should be completed and duly certified by the engineer and the inspector in charge of the work, and by1 the inspector appointed by the commissioner of sewers to examine the interior of the constructed work, and upon the performance of every stipulation contained in the contract to be performed by the relator! The proof tends to establish that the relator performed his contract in every respect, and the respective officials arid persons who were to certify that such contract was performed have so certified, and nothing remains to be done in fulfillment of it save the delivery of the warrant by the comptroller of the city of New York to the relator, in' *461accordance with the stipulated terms. It is quite clear, therefore, that the defendant is required to execute and deliver the warrant to the relator, unless he be excused therefrom by reason of the existence of other matters. ■'/
It is claimed upon the part of the defendant that the relator did not perform his contract in accordance with the stipulations therein contained, in that he violated the provisions of chapter 413 of the Laws of 1895 (re-enacted in Laws of 1897, chap. 415, § 14), in using upon the work for which his contract called dressed or cawed stone, not worked, dressed or carved within this State, as required by such act. The proof in respect of the violations of the act is embraced in a letter written and sent to the comptroller by a Mr. Dutton, and by the affidavit of one Charles Abbiati, of Hoboken, in the State of Hew Jersey. The affidavit is to the effect that the deponent therein named carved and finished in the city of Hoboken, State of Hew Jersey, a certain sewer basin, which was used by the relator in the completion of his contract. The contents of the letter are not verified by the oath of any person.
The question which has been raised upon this appeal relates to the constitutionality of the act, it being insisted by the appellant that even though there was a violation of the act by the use of the stone as stated in the affidavit, yet such charge cannot avail to defeat the delivery of the warrant and the payment of the contract price for the reason that the act in question violates the provisions of the Federal and State Constitutions.
"We think it entirely unnecessary in the disposition of this appeal to determine such question. While it is the settled rule that a peremptory writ of mandamus will not be granted where the opposition papers raise an issue of fact, and the writ will not ordinarily b| granted where the relator has an adequate remedy at law, yet the testimony which shows the issue must be competent in character and fairly raise a question upon a material issue; and while the ¡ courts will ordinarily refuse the issuance of such writ where there exists this adequate remedy at law, yet such rule is not exclusive, and where the right is clear the writ will issue. (Matter of Freel, 148 N. Y. 165; People ex rel. Beck v. Coler, 34 App. Div. 167.)
By the act in question it is provided that there shall not be used upon any State or municipal work within this State any stone, *462except paving blocks and crushed, stone, which is to be worked, dressed or carved for such use, except the saíne be worked, dressed or. carved within the jurisdiction of this State, and any contract for such work shall contain such clause. If any contractor with the State or a municipality violate the provisions of the- act, the State or corporation shall- revoke such contract, and shall be discharged from all liability therefor. The contract in question contained the clause in accordance with the terms of the act.
In contracts of this character the State or municipality stands upon the same footing as do individual parties. (People v. Stephens, 71 N. Y. 527.) And in the absence of fraud or collusion, the certificates of' the officials charged with the duty of certifying to the proper performance of the work under the contract are conclusive so long as they remain unimpeached. (People ex rel. Ready v. Mayor, 144 N. Y. 63.) In the present case it is admitted that the contract has been fully performed in all respects save in the use of the prohibited stone, the same has been certified by the proper officers and the city has accepted the work as completed. It was competent for the city to so accept the work, and such act of acceptance creates liability to pay the contract price.z (Smith v. Alker, 102 N. Y. 87.)
Assuming, -however, that the certificates and acts of acceptance would not conclude the city from an inquiry into the facts in order to determine where the stone used was dressed, yet it is evident, from the terms of the act, that the. contract is, not rendered invalid ■by reason óf the fact that the stone used was dressed or worked in á foreign jurisdiction. . It would still be competent for the city to accept the work and pay therefor.- Indeed the city is bound to pay if it accepts. That which would work a forfeiture of the contractor’s rights under the contract would require a revocation of the contract; and until this is done the contract stands. It is conceded that this contract has never been revoked. On the contrary, as we have seen, the city has adopted the same as completed, has’ certified to its proper completion in accordance with its terms, and is now enjoying the benefits of the contractor’s labor. This condition creates a liability to pay in accordance with its terms; and such liability is created entirely independent of any matter which the opposing papers. present. It has recently been decided by this, court *463(People ex rel. Rodgers v. Coler, 56 App. Div. 98) that before the city can avoid payment for work done under contracts which it had accepted, there must be some affirmative act upon the part of the city declaring the contract invalid. The question in that case arose under a statute similar to the present, and in principle the cases are not different. We do not regard it as material that other officials charged with a duty in connection with the delivery of the warrant are not made parties to the proceeding, if any such there are. It is clear that the comptroller is charged with the duty of drawing the warrant, and he may not find protection in the fact that other officers also have duties to perform. It will be presumed that such officers will obey the law, and, if so, no proceeding against them will need to be instituted. Such persons are not necessary parties to a proceeding which seeks to compel the performance of a duty which devolved upon the comptroller alone and in the performance of which no other officer shares.
Upon these facts, as we view the case, the act of the comptroller in deli zering the warrant is a mere ministerial act, and it does not lie in his mouth to question liability under the contract, in the absence, of any claim upon the part of the city that the contract price has become forfeited, or affirmative act upon its part, or of action upon the part of a person duly authorized to have the contract declared forfeited. Under such circumstances, within the authority of the Freel and Beolc Oases {supra), it becomes the duty of the comptroller to deliver the warrant, and his refusal so to do makes proper ground for the issuance of the writ. In this view no material issue is raised by the opposing papers.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Ingraham, J., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
McLaughlin, J.:Except for the decision of this court in'the case of People ex rel. Rodgers v. Goler {supra), I should vote for an affirmance of the order appealed from, but that case cannot in principle be distinguished from this one. Therefore, upon the strength of the Rodgers case, I concur in the opinion of Mr. Justice Hatch.