Martin v. W. J. Johnston Co.

Headnote

Upon the granting of a peremptory writ of mandamus, with costs,, air application for a stay pending appeal having been denied, defendant complied with the writ, paid the costs and appealed to the General Term, where the appeal was dismissed, the court holding that it was. not a practical question, the terms of the writ having been complied, with. Held, error; that the case should have been heard on the merits, as defendant would be entitled lo a restoration of the costs paid, in case the order were reversed.

Appeal from order of the General Term of the Supreme Court in the first judicial department, made January 5, 1891, which dismissed an appeal from an order of Special Term granting an application for a peremptory writ of mandamus. The following is the mem. of opinion :

“The Special Term granted the writ, with costs. The defendant asked for a stay pending an appeal, which was denied. It then complied with the writ, and paid the costs, and appealed to the General Term. That court dismissed the appeal on the ground that it was not a practical question, as the terms of the writ of mandamus had been complied with.

“ The court should have heard the case on the merits, because there was a question of costs which defendant had paid and which it would be entitled to have restored to it in case the order were reversed.

“ Order of General Term reversed and case remitted to that court with directions to hear the appeal upon the merits, with

costs of this court upon this .appeal to appellant to abide the event of the appeal to the General Term.”