(dissenting). Here there was an agreement to pay on the part of the city. The provision that the amount was to be *437put in the budget annually was incidental and could not affect the absolute agreement to pay. The cases cited by the city do not seem to me to be in point. Some of them merely hold that mandamus was the proper remedy under the facts presented; others, that the action was not maintainable because the party sued was under no obligation to pay, or that there was a provision in the contract that payment should not be made until assessments were laid and collected or bonds sold.
Upon reargument, judgment and order reversed upon the law and the facts, with costs, and complaint dismissed, with costs.