People v. Brennan , 1 Abb. Pr. 184 ( 1865 )

Clerke, J.

I think that the defendant was justified in paying the salary, now demanded by the relator, to the actual incumbent of the office, during the period in question. The Special and General Terms of this Court decided that the Commissioners who appointed him, were themselves legally appointed. Before this decision was reversed by the Court of Appeals, and while it was operative as the law, and, consequently, binding upon him, the defendant paid to the incumbent the money which had been appropriated, and which was then in the treasury, for such* payment. If he was justified in doing this, he cannot now be compelled to pay the relator out of the public money under his control. There Is no appropriation for such ■ payment; 'and, consequently,- there is no money in the treasury for this specific purpose. It would be a violation of law for the Comptroller to take money appropriated for some other purpose, and apply it to this. I cannot direct, much less compel him to do what would amount to an infringement of his duty and of the law. Whatever other remedies the relator may have, if he has any, this application cannot, in my opinion, be granted.

Motion for a mandamus denied