(dissenting). I dissent and vote for reversal and granting of the peremptory order of mandamus.. In Matter of Graybar Construction Corp. v. Berry (238 App. Div. 769; affd., 264 N. Y.-) the mayor was not made a party. The decision relied upon by Special Term (Matter of Nelson Iron Works, Inc., v. Berry, 237 App. Div. 575), holding that the mayor was a necessary party in the proceeding then under consideration, is not controlling. In that case the board of education was not involved and section 149 of the Greater New York Charter was applicable. In this proceeding the board of education alone is concerned and payments on its behalf are made on the signature of the board and the counter signature of the comptroller. (Education Law, § 880, subd. 3.) (See, also, People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125.) The petitioner was entitled to the relief sought under the authorities. (People ex rel. Wells & Newton Co. v. Craig, supra; Matter of Brennan v. Board of Education, 245 N. Y. 8; Matter of McNutt Co. v. Eckert, 257 id. 100; Matter of Poucher v. Berry, 249 id. 16.) This was the conclusion reached at Special Term, the denial being predicated solely upon the absence of the mayor as a necessary party.
Untermyer, J., concurs.
Order affirmed, with twenty dollars costs and disbursements.