This is an appeal from an order denying a motion for a peremptory writ of mandamus requiring the comptroller of the city of ISTew York to draw a warrant on the chamberlain of such city for a sum of money alleged to be due the relator for Work performed under a contract with such city.
From the moving papers it appears that the relator on the 2d of June, 1899, entered into a contract with the commissioner of parks for the removal of the Forty-second street reservoir, and in pursuance of which he had performed certain work and become entitled, to receive from the city the amount for which the warrant was asked. The .contract under which the work was performed contained, among others, the following provision, viz.: “ The party of the second part ” (the relator) “ further agrees to comply with all the provisions of Chapter 415 of the Laiys of 189Y, known as the Labor Law. This contract shall be void and of no effect unless the rate of wages specified in section 3 of said Labor-Law is paid by the contractor to his employees, and where laborers are employed only citizens- of the United States shall be employed, and preference is given to citizens of the State of New York, as provided in section 13 thereof.”
The papers read in opposition to the motion, among others, contained an affidavit by the'comptroller to the effect that the relator was not entitled to the sum claimed and that he had. not complied' with all of the terms and provisions of the contract, for the reason that he had failed to comply with the Labor- Law of the State in two respects: (1) That he had compelled or permitted his employees and those performing the work in question, under his supervision and control, to labor more than eight hours a day; and (2) that he had not paid his mechanics, workmen and laborers the prevailing, rate of wages, as required by the said Labor Law.
Whatever may be said as to the constitutionality of the statute-referred to we are of the opinion that the motion was properly denied, under the rule laid down in People ex rel. Rolf v. Coler (58 App. Div. 131). In that case Mr. Justice Hatch, delivering the. opinion of. the court, said: “The party moving for the writ” (mandamus) “ must establish a clear legal right thereto, and where he has a remedy to enforce payment by action, he will ordinarily *225be remitted to that remedy. The application for the writ is addressed to the sound discretion of the court, and if it can see that there exists, or may exist, a fair ground of contest over the performance of the contract, or the amount due thereunder, the writ will be refused and the party will be remitted to his action to establish Lis claim. (Matter of Freel, 148 N. Y. 165; People ex rel. Beck v. Coler, 34 App. Div. 167.) ”
From the record before us it does not appear that the relator has a clear legal right to the amount claimed, and while under the ■decision of the Court of 'Appeals (People ex rel. Rodgers v. Coler, 166 N. Y. 1) there is no force in the objection that the contractor Las not paid “ his mechanics, workmen and laborers the prevailing rate of wages,” it does not follow that the other objection made is invalid.
It is difficult to see why the city of New York, which has the .absolute control of its own property, had not the legal right to contract with the relator as to the number of hours which should constitute a day’s labor, or the maximum number of hours which a laborer should be employed in one day, and why it has not the legal right to insist upon the relator’s performing the contract in this respect, or, in default thereof, subject himself to the penalty therein provided, according to the letter and spirit of the contract. Whether there be force in this suggestion or not it certainly is not entirely ■clear that the city has no defense to the claim, and for that reason the application was properly denied. Mandamus is not the usual proceeding for the collection of a debt. It is only where, upon both the facts and the law, it clearly appears that there cannot be a •defense to the claim that the court will exercise its discretionary power by compelling the payment of a debt in advance of a judgment obtained after a trial had in the regular way.
The order appealed from is right and must be affirmed, with ten dollars costs and disbursements.
Yah Brunt, P. J., Patterson and Hatch, JJ., concurred; Ingraham, J., dissented
Order affirmed, with ten dollars costs and disbursements.