Without discussing in this case the question as to the mode of levying this money it seems to us that there is one great difficulty. It appears by the affidavits of the defendants that in -an action brought by Tennis P. Osterhout, and others in this court, this board of supervisors was enjoined from levying or assessing these very claims upon the ground that they were illegal, fraudulent and exorbitant. In that action judgment was rendered vacating the audits of these claims and perpetually restraining the board as aforesaid. This judgment has been affirmed on appeal to the General Term.
It is plainly inconsistent that this court should, in this proceeding command the defendants to do what in an action it forbids them. What are the defendants to do ? If they obey the mandamus, they disobey the injunction, and vice versa. We cannot place parties in that position. It is not necessary to say that the injunction was binding on this relator. For it is said that he ¡was not a party to that action. But it is binding on these defendants and they must obey it. The pendency of that action and the injunction granted therein were good reasons why they should not comply with the petition of the relator to assess his claim. And were good ’ reasons why the mandamus -should not have been granted. (People ex rel. Duffy v. West Troy, 25 Hun, 179; chap. 554, Laws 1880.)
We notice a fact to which the counsel have not referred and that is that both of the judgments are stated in the transcripts to be canceled of record. What the meaning of this is we do not know.
The relator urges that the defendants cannot impeach the judg*148merits for fraud, and .says that a sheriff might as well question the legality of a judgment on which he had received an execution. But if the sheriff had, in any action, been enjoined from levying and collecting such execution, would the court have attached him for not collecting ?
Perhaps the relator would have been permitted to show, if he could, that the injunction action was collusive. But that was not done.
The order should be reversed, with costs of appeal and printing disbursements and motion for mandamus denied, with fifty dollars costs and disbursements.
Present — Learned, P. J., Bockes and Boardman, J JrOrder reversed with costs, and motion denied, with fifty dollars costs and disbursements.