I concur in the propriety of granting this writ, were it not directed to the wrong parties.
The statute imposes the duty of creating this stock on the mayor, aldermen and commonalty of the city of New York. This is the corporate title of the municipal' corporation. They act by the common council and the mayor. „No action of the one without the consent of the other can enact the necessary laws for creating the jDublic stock, except in case of a veto from the mayor. The mandamus directs the common council to enact the necessary law to create the stock. This they can not do without the mayor, and they are required to do what is not in their power.
I have no objection to a modification of the command in 'the writ, so as to require them to prepare and pass in their separate boards the necessary ordinance for that purpose, and on complying with that direction their duty in the matter is discharged.
In The People v. Common Council of Brooklyn, (22 Barb. 404,) the writ was so directed and allowed, but in that case the statute directed the common council of Brooklyn to do the act. So in the case of The People v. Common Council of Syracuse, (20 How. Pr. R. 491,) the statute directed the common council, after the. award, to pay the money. In McCullough v. The Mayor, &c. of Brooklyn, (23 Wend. 458,) Bronson, J. said the proper remedy was a mandamus *476against the corporation to exercise their functions according to law.
[New York General Term, January 2, 1866.Two things are necessary—the action of the common council and the approval of the mayor—before the law can be enacted.
If the writ had been directed to the corporation, it would have been their duty to pass the law. As it is, the remedy at best will be imperfect.
Order affirmed.
Geo. G. Barnard, Clerke and Ingraham, Justices.]