I am unable to concur in the opinion of Mr. justice Carr. The rule in mandamus is that there must be a clear legal duty, involving no discretionary powers, and I fail-to find in the papers any clear legal duty on the part of either of the respondents in reference to the fence which it is claimed has been erected within the limits of Cobb’s lane. There appears to be a dispute as to the boundaries of this thoroughfare ; there is a dispute as to whether the fence is in fact in the highway and to compel the respondents or .either of them
*81to remove this alleged obstruction and to take upon themselves the responsibility of determining the correct boundary lines of the way is not within the legitimate province of the writ of mandamus. The streets'and public places of villages are within the jurisdiction and control of the board of trustees (Village Law [Consol. Laws, chap. 64;. Laws of 1909, chap. 64],.§ 141), not of the president, and the only provisions of the ordinances of the village of Tarrytown to which attention is directed are sections 13, 53 and 54. The last two sections obviously relate to matters involving the public health, and have no relation whatever to a common-law public nuisance, such as is here complained of, while section 13 merely declares that “ bio person shall erect any piazza, steps, fence or obstruction of any kind within the line of any street or sidewalk in said village, under a penalty .of ten dollars, and five dollars for each additional day said obstruction shall remain after notice to remove same, from the president of trustees.” The rule is well established that “ The only liability which attaches to the infraction of an ordinance is the penalty which it imposes ” (21 Am. & Eng.. Éncy. of Law [2d ed.], 1000), and section 13 of the ordinances of the village of Tarrytown does not, by implication, impose any other duty upon the president of the board of trustees than to give notice to those who may violate the ordinance to abate the obstruction as a condition precedent to the incurring of the penalty.' There is nothing in the ordinances, properly construed, which imposes any duty on the president of the board of trusteés to remove an obstruction from the highway ; his only duty, if there is an actual obstruction, is' to give notice, and then if the person obstructing the street persists he is liable to the penalty denounced against the act, but this involves no civil liability. (21 Am. & Eng. Ency. of Law [2d ed.], 1000.) It is conceded that there is no duty on the part of the street commissioner to act, and I am equally persuaded that there is nothing in the statutes or in the ordinances of the village which requires the president of the board of trustees to assume the burden of determining the boundaries of a highway, where they are in dispute, and to remove obstructions from the same. The questions here presented are too complex to cope within the scope of mandamus, either peremptory or alternative, and I agree with the court below that the controversy should be tried out between the parties who are directly interested.
*82Order, in so far as it denies the motion for a writ of mandamus against the village president, reversed, with ten- dollars costs and disbursements, and ordered that an alternative writ against him issue. The order, so far as it denies the motion against. the street commissioner, affirmed, with ten dollars costs and disbursements. .