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People ex rel. Mount Vernon Trust Co. v. Millard

127 A.D. 77 Court Second Department, Decision date 1908-06-12 English

Delivered by Jenks, J.:

Contents

Majority

p. 77
The People of the State of New York ex rel. The Mount Vernon Trust Company, Appellant, v. Charles D. Millard, as Supervisor of the Town of Greenburgh, Respondent.
Second Department,
June 12, 1908.

Headnote

Appeal — mandamus — alternative writ.
There is no appeal from an order of the Special Term denying a peremptory writ of mandamus but granting the alternative writ.
p. 78
Appeal by the relator, The Mount Vernon Trust Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the'30th day of March, 1908.
Arthur M. Johnson, for the appellant.
Hugh A. Thornton, for the respondent.

The relator moved for a. peremptory writ of mandamus. The Special Term made an order denying; the motion for the peremptory writ but directing that an alternative writ issue. . The relator appeals-from that order and from each and every part thereof.

. We think that the appeal should be dismissed. In People ex rel. Ackerman v. Lumb ( 6 App. Div. 26 ) the relator moved for a per- émptory writ but the Special Term granted an alternative writ, and the respondents- appealed. We -held that the order was not-appeal-able inasmuch as it was iii the nature of an order to show cause, and did not affect a substantial right. (See, too, People ex rel. Levenson v. O'Donnel, 99 App. Div. 253 , and cases cited; Merrill Mandamus, § 306; Baylies N. T. & App. [2d ed.] 107.) Merrill on Man-' damns (supra) says: “ When the courtupon the hearing of- the appli- . cation decides that,, upon the allegations made,, the relator is not entitled to' a -writ- of mandamus, and refuses id grant either a motion to show cause or cm alternative writ, the prevailing opinion in America - is, that such action is a final judgment, from which an appéal or a writ of error may be taken to the appellate court.”

The appeal is dismissed, with ten dollars costs.

Hookeb, Gaybob, -Rich and MíclEb, JJ., concurred.

Appeal dismissed, with ten dollars costs.

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