People ex rel. Adams Dry Goods Co. v. Woodbury

Patterson, J.: The case comes before us on the petition and an affidavit in answer thereto. It is hot claimed by the appellants that any issue of fact should have been tried as upon an alternative writ. The affiant does not admit all the allegations of the petition. He denies that he (the street cleaning commissioner) has refused to remove the garbage from the premises of the petitioners, and avers that he has always kept the streets cleaned in front of the petitioners’ premises and will continue so to do. His refusal was to remove or cause to be removed from the premises of the petitioners ashes, rubbish and other light refuse which now have accumulated or hereafter may accumulate thereon. The petitioners’ claim is, as it is now urged, that upon the facts as they are stated in the only record we have they are entitled to a peremptory writ. As the petitioners take that attitude, we must regard the affirmative allegations of the answer as true, and a peremptory writ of mandamus can only be granted where the facts 'are unquestioned, showing a clear legal right. On application for a peremptory writ of mandamus statements contained in the opposing affidavits, whether by way of denial or in affirmation of new matter, are to be taken as true. (People ex rel. Gibbons v. Coler, 41 App. Div. 463; Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; People ex rel. Corrigan v. Mayor, Id. 215.) We must, therefore, assume that the respondent has not refused to remove garbage, as alleged by the petitioners, and that he has kept the streets cleaned in front of their premises. They were not, therefore, entitled to the per-, [450] emptory mandamus they demanded, for that looked to the awarding of some relief to which they are not entitled; and it has been held that where an applicant for mandamus asks for more than he is entitled to, the application should be denied, even though he may be right in other respects. (People ex rel. Byrnes v. Green, 64 Barb. 162; People ex rel. Ketteltas v. Cady, 2 Hun, 224.) But passing that and regarding the application as limited to the removal of ashes and light refuse and rubbish from the premises of the petitioners^ they insist that they have a legal right that the commissioner remove such matter from their premises^ They specifically disclaim any demand that he remove what is called trade waste. They call our attention particularly to the fact that they “ now only-ask that the duty of the commissioner be enforced as to ashes and garbage.” The answer of the commissioner that he has not refused to remove garbage is conclusive, and the petitioners being thus limited to an application to compel him to remove from their various-department stores the ashes that have accumulated, the only question is, whether they have á clear legal right to that specific relief.. They claim it under the provisions of the Revised Greater Hew York charter which relate to the duties of the street cleaning commissioner. The court below refused the writ on the ground that the duties of that official, as defined and prescribed by the revised' charter, are-administrative in their character and necessarily such as involve the exercise of wide discretion in their performance. Mandamus will not lie to correct abuse in administrative acts (Matter of Croker, 78 App. Div. 184) or to compel an act requiring discretion or to review such an act. (People ex rel. Wooster v. Maher, 141 N. Y. 337; People ex rel. Demarest v. Fairchild, 67 id. 334.) The right of the relators to have ashes or other material removed from their premises accrues to them only by virtue of the municipality, under the laws of the State, assuming to discharge a duty which otherwise would repose upon the citizens themselves. “ The burden of removing the ashes, if the owner does not wish them to-remain longer on his property, is primarily just as much his personal obligation as it was to bring to his premises, in the first instance, the-coal from the burning of which the ashes proceeded.” (Cullen, J., Quill v. Mayor, 36 App. Div. 476.) But the city having assumed the duty, and the commissioner of street cleaning being [451] charged with the performance of that duty, a purely arbitrary discrimination made in favor of some and against other inhabitants would not be tolerated. One citizen has as much right to the performance of the public service as another, but where, from the existence of conditions which are undisputed, all cannot be served, it is evident that a necessary and unavoidable discrimination in the performance of duty must be made; and in making it the street cleaning commissioner is obliged to exercise his own discretion. The duties imposed upon him by the provisions of the Greater New York charter are multifarious. By section 534 of that charter he has control of the sweeping and cleaning of the streets of the boroughs of Manhattan, The Bronx and Brooklyn ; the removal or other disposition, as often as the public health and the use of the streets may require, of ashes, street sweepings, garbage and other light refuse and rubbish, and the removal of snow and ice from leading thoroughfares and from such other streets within the said boroughs as may be found practicable. To accomplish all the purposes of these requirements there is appropriated annually by the board of estimate and apportionment a certain sum of money. The street cleaning commissioner is prohibited by law from making expenditures exceeding that amount. (Revised Greater N. Y. Charter, § 1542.) The plant of the department, as the affidavit of the commissioner shows, is insufficient to enable him to perform all these duties, including the removal of ashes and rubbish from every house and every store and every factory in the boroughs of Manhattan and The Bronx. He shows that the department is absolutely unable, with its present equipment, to do so; and his appropriation was insufficient to provide the necessary facilities for the performance of all this work. Under such circumstances, it remained for the commissioner, in the exercise of his best judgment, to determine what should be done in the performance of that work with the facilities at his command qnd the appropriation by which he was limited. If he removed the ashes and waste from the great department stores and factories, leaving such things to accumulate in tenement houses and private dwellings, the owners and occupants of such buildings would have the same cause of complaint as that now urged by the relators. The commissioner was confronted with a condition, not of his creation, [452] and over which he could exercise no other control than that of the exercise of discretion in doing his work. A necessity for discrimination existed, and the exercise of his judgment in that necessity is nót a matter to be reviewed or controlled by the courts. We think it was within the power of the commissioner to promulgate ■the order now complained of. The manner of the performance •of work, where arbitrary and unjust and uncalled for discrimination is not made, but where it is compelled by supreme necessity, is within the discretion of the commissioner. We are, therefore, of the opinion that the court below was right in refusing the writ and that the order appealed from should be affirme'd, with fifty dollars costs and disbursements. O’Brien, J., concurred.