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[Vol. 197

apportionment to appropriate the sum of $62,143.93, "such appropriation or so much thereof as may be required to be used for the purpose of making payment to the Wells & Newton Company of New York of the amount found to be due and resulting from work performed at the Evander Childs High School, Borough of the Bronx, in accordance with the terms and stipulations contained in preambles and resolutions adopted by the Board of Education on July 3, 1918, the said preambles and resolutions continuing in performance a contract for the work of installing heating and ventilating apparatus at the above named school building, entered into between the Wells and Newton Company of New York and the Board of Education on October 25, 1915."

It will be seen that this resolution of the board of education so far from fixing the amount due to the relator expressly left open the question of how much was actually due, and while it requests the appropriation of a fixed sum it did not request that all of it be paid to the relator, but on the contrary provided that so much thereof as might be required be used for the purpose of making payment of the amount found to be due. This action of the board of education, therefore, far from being an audit of the relator's claim still left the question of the actual amount due open for future fixation in the manner provided by law.

Third. The board of estimate and apportionment, when it favorably acted upon the request of the board of education for the issuance of special revenue bonds in the amount of $62,143.93, provided "said special revenue bonds to be issued in accordance with the provisions of section 187 of the Greater New York Charter and the proceeds to the amount of the par value or as much thereof as shall be required, to be used to pay whatever claim may be found in favor of the Wells & Newton Company under the provisions of law relating to the audit and payment of salaries and other claims by the Department of Finance; and such amount as may thus be paid, not exceeding the amount herein authorized, shall be included as a separate item in the annual estimate of the Board of Education for the year 1921 in accordance with the requirements of section 877, subsection B, of the State Education Law as amended."

First Department, July, 1921.

App. Div. 407]

Thus the board of estimate and apportionment, far from fixing the amount due to relator under its contract, expressly left open the question of the amount to be paid and provided specifically that whatever was found due should first be. determined under the provisions of law relating to the audit and payment of salaries and other claims by the department of finance.

Fourth. When the board of aldermen approved and concurred in the resolution of the board of estimate and apportionment, it did so in the exact language of the resolution of the latter board and thus again left open the question of the amount due to the relator to be determined and fixed by the proper public officials.

It thus appears that the relator's claim has never, in fact, been audited, fixed and determined at any amount by any public official or board. The amount to which it is entitled, if any, still remains to be determined by the proper auditing officer who, under the facts hereinbefore set forth, it seems to me is clearly the comptroller of the city of New York under the provisions of section 149 of the Greater New York charter (as amd. by Laws of 1917, chap. 401).

The learned counsel for the relator contends that in the present matter the comptroller is but a ministerial officer charged with the duty of drawing a warrant against the sum appropriated for the specific purpose of making payment to the relator of the amount found to be due; but there never yet has been any amount found to be due to relator and, therefore, this contention is without force.

Nor does the fact that the comptroller voted in the affirmative on the resolution of the board of estimate and apportionment herein before quoted estop him in any way from asserting his right to audit the relator's claim herein for the reason that the resolution for which he voted did not fix the amount of the relator's claim nor audit the same, but on the contrary left the audit thereof to the ordinary legal procedure which would have involved the reference of the claim in due course to him for audit. This action would have given him the right to examine the claim and obtain such information in addition to that tendered by the relator as would have enabled him to determine whether or not the claim was a proper one

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[Vol. 197 and to exercise his power of audit accordingly. The relator has never complied with any of the requirements of law to compel or warrant the audit of its claim by the comptroller.

It follows, therefore, that the relator having failed to establish a clear legal right to the payment in question is not entitled to a writ of mandamus and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a mandamus denied, with fifty dollars costs.

CLARKE, P. J., SMITH, PAGE and GREENBAUM, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs.

THE NEW YORK TRUST COMPANY, Plaintiff, v. PORTLAND RAILWAY COMPANY and PORTLAND RAILWAY, LIGHT AND POWER COMPANY, Defendants.

First Department, July 1, 1921.

Mortgages — sinking fund provision of railroad mortgage or deed of trust construed after " defined "bonds outstanding " defined - practical construction of agreement by parties recognized by court.

The sinking fund provision in a railroad mortgage or deed of trust executed by the defendant to the plaintiff as trustee, after providing for the payment of specified amounts annually based upon the issue of a certain amount of first and refunding bonds, provided as follows: "On the first day of November in any year if a greater amount of the first and refunding bonds than five million nine hundred and eighty-two thousand dollars face value issued hereunder shall be outstanding the annual sinking fund payments due from November 1st, 1907, to November 1st, 1909, inclusive, shall be increased by a sum equal to five-twelfths of one per cent. of the amount of bonds outstanding [italics by court] in excess of $5,982,000 and the annual sinking fund payments due from November 1st, 1910, to November 1st, 1919, inclusive, shall be increased by a sum equal to two-thirds of one per cent. of such excess and the annual sinking fund payments due after November 1st, 1920 [italics by court], shall be increased by a sum equal to one per cent. of such excess."

Held, that the word "after" was intended to mean "on and after " November 1, 1920, and that the defendant was obligated to make a

App. Div. 422]

First Department, July, 1921.

payment to the sinking fund on said date calculated on the basis of one per cent;

That the words "bonds outstanding " include those in the sinking fund, and, therefore, all bonds purchased with sinking fund moneys forming part of said fund should be included in calculating the amount to be paid by the defendants to the plaintiff as trustee.

The practical construction by the defendants of the sinking fund provision for a period of thirteen years should be considered by the court in construing said provision.

SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

Sherwood E. Hall of counsel [Hornblower, Miller & Garrison, attorneys], for the plaintiff.

Walter K. Earle of counsel [Joseph S. Clark with him on the brief; Sherman & Sterling, attorneys], for the defendants.

GREENBAUM, J.:

The controversy involves the construction of a railroad mortgage or deed of trust executed by the defendant Portland Railway Company to the plaintiff as trustee and particularly of that portion of the instrument which deals with provisions thereof requiring stated sinking fund payments to be made by the mortgagor.

The defendant Portland Railway Company, incorporated in 1905 under the laws of the State of Oregon, was the owner of a street railway system in the city of Portland, Ore. On April 30, 1908, it conveyed all of its properties and franchises to the defendant the Portland Railway, Light and Power Company.

The aggregate amount of bonds authorized under the mortgage was $10,000,000 and it was contemplated that the initial issue should be limited to $5,982,000.

After the initial issue of upwards of $5,000,000 of bonds, there were issued additional bonds aggregating $2,541,000, thus making a total issue of the first refunding bonds prior to November 1, 1920, in the principal sum of $8,523,000, of which on November 1, 1920, $988,000 in amount were in the sinking fund.

It appears from the submission that "shortly before

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November 1, 1920, the question arose between the parties as to the amount of the payment into the sinking fund which would be due on that date." The defendants claimed that only $60,000 was payable on that day and that no additional payment would then be due, and further that the bonds held in the sinking fund should not be included in calculating the amounts due upon the specified percentages. On October 28, 1920, the defendant Portland Railway Company paid to the plaintiff as said trustee the sum of $60,000 on account of the sinking fund in accordance with the provisions of section 1 of article 4 of the said mortgage. This payment was made and received without prejudice either to the rights of the plaintiff to claim and demand additional payment or to the rights of the defendants to a restatement of the account and a claim to a refund because of previous overpayments through not deducting sinking fund bonds in calculating the percentage. It also appears from the submission that on November 19, 1920, plaintiff demanded of the defendants "the further sum of $25,410 as an additional payment to the sinking fund due to it as of November 1, 1920, together with interest thereon at the rate of 6 per cent. per annum over and above the payment of $60,000 which had been previously paid. The payment of the $25,410 was demanded as being one per cent. of the total bonds issued on November 1, 1920, in excess of $5,982,000 including the sinking fund bonds previously purchased;" that the defendants declined to pay the sum of $25,410 so demanded, "upon the grounds as set forth in said refusal that, (1) the only payment required by said sinking fund on November 1, 1920, was the said sum of $60,000, which they had previously paid, and (2) if any excess payment would be due under the mortgage it would not be the sum of $25,410, but would be 1% upon the total amount of bonds issued and still outstanding in excess of $5,982,000, not including the bonds purchased and paid for with sinking fund moneys."

It also appears that cash payments have been made up to November 1, 1920, to the plaintiff as trustee in annual amounts, which in each instance equalled the fixed sum plus the percentage on all bonds then issued in excess of $5,982,000. In other words, there was no question whatever raised until