(dissenting):
I dissent. Section 14 of the Public Service Commission Law (as amd. by Laws of 1921, chap. 134, § 19) provides that the board of estimate and apportionment shall from time to time, on requisition duly made by the Transit Commission, appropriate such sums of money as the Commission shall certify to be necessary to properly enable it to perform the duties imposed upon it. “ Such appropriation shall be made forthwith upon presentation of such a requisition without revision or reduction and without the imposition of any conditions or limitations by such board * * *, and such appropriation by it is hereby declared to be a ministerial act. If such board * * * shall fail to appropriate such amount as such Transit Commission shall deem requisite and necessary,,such Commission may apply to the Appellate Division of the Supreme Court in the First Judicial Department * * * for an order requiring such board * * * to make such appropriation.” The constitutionality of the act was upheld in Matter of McAneny v. Board of Estimate, etc. (232 N. Y. 377, affg. 198 App. Div. 205). The court said: “ Was it the duty of the board of estimate and apportionment, upon receiving the requisitions from the Transit Commission, to make the appropriations requested? To this question there can, as it seems to me, be but one. answer. It was its duty to do so. The act so declares. In making the appropriations the board acts ministerially. It has no discretion as to the amount to be appropriated. The purpose of this provision in the act is obvious. It is to prevent the board of estimate and apportionment from defeating the purposes of the act by withholding appropriations. * * * The purpose of the Commission in asking for the appropriation, or to what use the money appropriated is to be put, does not concern the board. As well might a register of deeds of conveyance refuse to record a deed until the purpose of the one seeking to have it recorded has been disclosed, as for the board of estimate and apportionment, under this act, to refuse to make the appropriation until the purpose of the Commission be disclosed. * * * ” The court also decided that the Transit Commissioners were hot city officers. ' It also said: “ The act, in addition to amending the Public Service Commissions Law in certain respects, and in addition to vesting in the Transit Commission certain regulatory functions and all the powers and *270duties under the Rapid Transit Act of 1891, as1 amended, vests in the Transit Commission, by article 6, and as a grant of a distinct and independent power, the right and duty to prepare a plan of readjustment for the relief of the emergency which is dec1a~red to exist, and which plan shall accomplish as nearly as may be, three purposes (section 106) : (1) The combination, rehabilitation, improvement and extension of existing railroads, so that service thereon may be increased and improved to the fullest extent possible. (2) The receipt, as soon as practicable, by the city of sufficient returns from the operation of the railroads, so that the corporate stock or bonds issued by the city for the construction of rapid transit railroads may be exempted in computing the debt incurring power of the city under the ConstitutiOn of the State. (3) The assuring to the people of the city the continued operation of the railroads at the present or lowest possible fares consistent with "the just valuations of the railroads and their safe and economical operation."
The requisition for the appropriation having been honored; as the result of the mandamus order granted by this court and affirmed by the Court of Appeals, the Transit Commission in the performance of the duty imposed upon it to prepare a plan of readjustment, as provided supra, in the exercise of the discretion vested in it as a State board untrammeled by any lawful interference by city authorities, made a contract for the taking of moving pictures showing the actual conditions existing under the present passenger transportation systems. The contract was duly performed and the proper papers and vouchers were duly forwarded for payment. Thereupon a city official, the comptroller, refused to honor the said vouchers upon the ground that in his opinion the expenditure was not authorized. The Court of Appeals in the case cited said: “ The purpose of the Commission in asking for the appropriation, or to what use the money appropriated is to be put, does not concern the board ” of estimate. Neither in my opinion does it concern the comptroller. Section 14 of the Public Service Commission Law which provides that the appropriation shall be made as requisitioned “ without revision or reduction and without the imposition of any conditions or limitations,” immediately preceding the clause in said section conferring power upon this court to compel the appropriation, continues: “ It shall be the duty of the comptroller or other chief fiscal officer of such city, after such appropriation shall *271have been duly made, to audit and pay the salaries and expenses of such Commission chargeable to the city, upon vouchers therefor.” The phrase “ chargeable to the city ” is employed because the seer tion provides that the salaries of the Commissioners, secretary and counsel are to be paid by the State Treasurer upon the order of the State Comptroller, while “ all other salaries and expenses of the Transit Commission shall be chargeable to the city in which such Commission has jurisdiction.” The section then provides the procedure for the payment thereof. It is inconceivable to me that the same section which denies all discretion to the board of estimate and apportionment as to the amount of appropriation and the purposes for which made, can be held to confer it upon the comptroller. In my opinion his power and duty under this act is also purely ministerial. His duty after the appropriation shall have been duly made is to audit, that is, to examine and see from the vouchers presented to him whether the contract was made, whether the proper certificates of performance were attached and whether the amount asked for conforms to the contract and the certificates. It is not within his jurisdiction to determine whether the contract ought to have been made. That palpably is for the Commission to determine and its decision is binding on him. If not, the elaborate scheme evidenced by this act to lodge power and responsibility upon this State board, unhampered by the city authorities, is thwarted and the power deliberately denied to the powerful board of estimate and apportionment is possessed by a single city official and his authority to audit becomes a right to veto. I think the clear meaning of this provision is that it is his duty to audit and pay upon receipt of the proper papers as indicated supra. The comptroller in his answer raises no question as to the reasonableness of the contract price, nor does he attack the making of the contract, the proper performance of the work, the due presentation of the bill or its due vouchering according to law.
In my opinion it was the plain duty of the comptroller to audit and pay this claim, and that the order appealed from should be affirmed.
Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs, and alternative order granted. Settle order on notice.