People ex rel. Kavanagh v. Grady — 20 A.D. 27

Majority

p. 27

The People of the State of New York ex rel. Owen J, Kavanagh, Relator, v. John T. Grady and Others, as and Composing the Board of Police Commissioners of Long Island City, Respondents.

Headnote

An Appellate Division may, upon an appeal from an order denying an application fora peremptory writ of mandamus, grant the writ — to disregard a writ so granted¡' is a contempt of court.

The provisions of section 2068 of the Code of Civil Procedure, enacting that a. writ of mandamus cannot be granted except at a Special Term of the court, apply only to an original application for the writ, and have no effect upon section 1317 of the same Code, providing that an Appellate Division may reverse, affirm or modify any order appealed to it.

A failure to comply with the terms of a peremptory writ of mandamus, issued upon an order, made on appeal, by. the Appellate Division, constitutes a contempt of court.

Motion by the relator to punish the respondents for contempt of court for failing to comply with the provisions of a peremptory writ of mandamus issued by the Appellate Division of the second department.

William E. Stewart, for the relator.

George W. Stephens, for the respondents.

We are of opinion that the objection to the regularity of the writ of mandamus served on the respondents, in that it was issued on the order of this branch of the court instead of by the order of the Special Term, is not well founded. The provisions of section 206$

p. 28

•of the Code of Civil Procedure, that a writ of mandamus ’can be granted only at a Special Term. of the court, apply only to an original application for the writ. That section does not limit the ■effect of section 1311 of the Code, that on appeal the Appellate Division may reverse, affirm or modify any order appealed to it. The authority for the issue of a writ in this case was the order of this division, made qu an appeal from an order denying the application for the writ. The order of this branch of the court required no action by the Special Term to give it full vitality and effect.

Defendants should be convicted of contempt and fined the sum of ten dollars and ordered to stand committed to the common jail of ■Queens county until they comply with the terms of the writ. ■

All concurred.

Defendants convicted of contempt and fined the sum of ten dollars, and directed to stand committed to the county jail of Queens ■county until they comply with the mandamus hitherto issued by this court. ■