Upon the evidence disclosed by the affidavits, it is, at least, doubtful whether the relator is entitled to the moneys for which the warrant was drawn ; and I am constrained to say that I can find nothing in the papers before me which made it the duty of the comptroller to draw the warrant in favor of the relator. The contract was with Barrett. He is dead. Prima facie his legal representatives are entitled to the money due from the city. The relator claims that he was a partner, and produces a certificate to that effect, alleged to have been signed by Barrett. This is denied, by disputing the genuineness of the signature of Barrett to the certificate, and other facts. It further appears that the executor of Barrett has sued, the city to recover the money for which the comptroller drew the warrant in favor of the relator. I can find nothing in the charter of the city, or in the general statutes of the state, authorizing the comptroller to. adjudicate the question of title to this money.
The action of the street commissioner related only to the doing of the work, and that of the. auditor related only to the legality of the employment and the amount of. the bills. These certificates had no effect upon the right to receive the *42money. The question, therefore, is whether the mayor was controlled by the action of the comptroller and was bound to sign the warrant as a mere ministerial act. I think not. The argument of the counsel for the relator would" be applicable if the question related only to the amount, because the mayor would be bound by the determination of the officers to'whom the statute had confided the specific power on that .subject; . but the power of determining a litigated claim against the city has not been vested in the comptroller, or of any of the city officers, to the exclusion of the mayor, and it is very clear that a statute making such a determination binding on the representatives of Barrett would be void.
The provision of the charter is that no money shall be drawn or paid out of the treasury except upon warrants signed by the mayor, or acting mayor, comptroller, and countersigned by the clerk. It is contended that the power conferred upon the comptroller to manage the financial' affairs of the corporation and administer oaths to persons presenting claims against it is exclusive in its nature, and that the mayor is vested with no discretionary check in respect to payments out of the city treasury, bu,t is under a legal obligation to sign every warrant which has the signature of the comptroller. I cannot assent to this. On the contrary, I think the mayor has the power, and that it is his duty to take care that no money is drawn out of the treasury except in pursuance of law. In the present case, the appropriate remedy is by action against the corporation. The mayor, I think, had the power, and properly exercised it in refusing to sign the warrant in question ; but if I am wrong on this point it does not follow that the relator is entitled to the writ of mandamus. The granting or refusing the writ is a matter of discretion, and under the facts of the case I think it ought to be refused. For, as was said by Judge Emott, in The People v. The Contracting Board, (27 N. 7. Rep. 381,) to entitle a party *43to this remedy, “there must be a clear legal right, not merely to a decision in respect to the thing, hut to the thing itself.” The writ is refused ; the order to he entered at three days’ notice.
[Kings General Term, February 11, 1867.Lott, J. F. Barnard and Gilbert, Justices.]