I cannot concur in the opinion of the court in this proceeding. .It seems to me that the- learned . justice who wrote the opinion assumes a condition of fact which is not borne out by the record before us. It is assumed that there was no issue raised in regard to the performance-of the contract by the contractors; and that the certificates required by the contract having been given and the work taken possession of by the city, even if there was a breach of the contract the city could not avail itself of it. The opinion further infers that the evidence is not very satisfactory as to there having been any breach of the contract. It is' certainly not the province of a respondent in a proceeding for mandamus to set up' the evidence which constitutes his defense to the application. It is enough if he puts in issue the right to relief by mandamus. The. evidence is to be offered -upon the trial of an issue formed either by the return to an alternative writ of mandamus or the answer to a complaint.
It is a familiar rule that debts should not be collected by mandamus, and I see no reason why that rule should not apply to obliga^tions of the city as well as to those of individuals. It is true that in the-case of Matter of Freel (148 N. Y. 165) the court went a long way -in sustaining a mandamus which had been granted by the Supreme Court against the comptroller of the city of Brooklyn, But certainly the rule there established is not to be extended; and it does not imply that a mandamus' should issue in all such cases. The Court of Appeals simply held that the Supreme Court had jurisdiction to issue a mandamus, but did not hold that it should use its discretion in the issuing of the same. In that case it was plainly stated that the right to recover was in no way attacked upon the part of the city. In the case at bar the defense is set up that the contract has been violated, and where such is the case, the questions of fact and law raised must necéssarily be tried in an action brought to recover the amount claimed to be due upon the contract.
It is to be observed that the proceeding is against the comptroller alone. He is to draw his*check, called “warrant” in the proceedings, against tlj,e"city funds and deliver it-to the contractor. It is difficult to see .of what avail such an instrument could be in the contractor’s hands. The law requires that all drafts upon the city treasury should be signed by other city officials than the comptroller; *465and they are not parties to this proceeding. It may be true that such an objection is not raised upon the part óf the .corporation counsel in this proceeding; but it seems to me that the court, before it sanctions the issuing of so summary a remedy for the purpose of collecting a debt, should see that its writ would be effectual if issued.
It appears to me also that the validity of chapter 413 of the Laws of 1895 is not in question. The contract contained a provision in regard to the dressing of the stone ; and as between the city and the contractor, if the contract contained such a provision and the latter chose to accept it, it is difficult to see why he should not be bound by it.
An entirely erroneous view seems to be taken of the fact that the city is in possession of the work. Ever since the case of Smith v. Brady (17 N. Y. 173), where a contractor has made a construction upon a party’s property, the owner is not bound to abandon the use of his property under the penalty of paying for the construction,, although it does not conform to the contract. It is, I think, establishing a dangerous rule to allow this summary procedure to collect debts against the city which certainly could not prevail against a private individual. The court might just • as well issue its writ commanding a private individual to draw a check upon his bank account to pay a claim alleged against him, as to grant the writ under the circumstances disclosed by the papers in this proceeding.
It ordinarily would be fatal to the application that all the proper parties are not before the court in order to make the writ effectual; and that the court is bound to take that objection of itself, even if not taken by counsel. This is not a question of the comptroller finding protection, but the question whether the court will be guided in those proceedings by the rule which has always heretofore obtained viz., that the court will not grant relief by detachments, but that all the parties necessary to do the act required must be before the court before it will issue its mandate. But as the rule is to be laid down that debts may be collected by mandamus, it is of little moment that those rules which have been heretofore supposed necessary to protect against an abuse of this extreme writ, should also be disregarded.
The dissenting opinion in the Rodgers case shows additional reasons for the affirmance of the order.
*466The order appealed from should be affirmed and the motion, denied as a matter, of discretion, and the plaintiff remitted to the ordinary mode of. collecting an alleged debt. ." '
O’Brien,- J., concurred.
Order reversed,, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.