The opinion
B.OSS, J., dissenting:
I dissent. I think the writ should be denied, for the reason that we cannot, in this proceeding, treat the appeal taken by the City and County Attorney as a nullity. In my opinion, how *328 ever, when the Board of Supervisors directed the judgment that had been recovered by Smith against the City and County of San Francisco to be paid, it was, in effect, an ending of the controversy, and a determination by that body not to take an appeal from the judgment. And I think it cannot be doubted that the Board of Supervisors had the power to stop the litigation by directing payment of the judgment, rather than put the city and county to further cost in the prosecution of an appeal, which, as shown by the record in this proceeding, they considered, after consultation with the late City and County Attorney, who was the attorney who tried the cause, would be a fruitless appeal. (Board, of Supervisors of Orleans County v. Bowen, 4 Lans. 30, 31 .) The record here shows that after this action on the part of the Board of Supervisors, after the resolution directing payment had been approved by the Mayor, and after the claim had been presented to the Auditor and indorsed “ allowed,” and after it had been presented to the Treasurer for payment, and by the latter official duly registered, but not paid for want of funds, the petitioner, the Bank of California, in good faith, and for value, purchased the demand. Subsequent to all this, the present City and County Attorney, of his own motion, and in pursuance of what he deemed his duty, took an appeal to this Court from the judgment. The appeal was not directed or authorized by the Board of Supervisors, and the action of the City and County Attorney in that regard was in conflict with the previous action of the board respecting the matter. Nevertheless an appeal was taken by the law officer of.the city and county, and is still pending, and as long as it exists, I do not see how the Treasurer can be compelled by mandamus to pay the claim. I think it proper, however, to say that the appeal should in my judgment, be dismissed on motion; for I think, that in view of the facts appearing, the city and county would be estopped from further questioning the legality of the demand, even had the Board of Supervisors authorized the appeal, which, as we have seen, it did not do. (People v. Fitzgerald, Treas., 54 How. Pr. 1 ; Martin v. Supervisors, 29 N. Y. 645 ; El Dorado Co. v. Elstner, 18 Cal. 144 ; Board of Supervisors v. Bowen, 4 Lans. 31 .)