People ex rel. Brennan v. Haffen — 108 N.Y.S. 654

Majority

p. 654

PEOPLE ex rel. BRENNAN v. HAFFEN, Borough President.

(Supreme Court, Appellate Division, First Department.

February 7, 1908.)

Headnote

1. Mandamus—Pbactice—Regulabity.

A proceeding by which, on papers entitled “People, on Relation of B., v. H., President of Borough of B.,” and on an order to show cause and affidavits, a peremptory order to issue a permit, which was all that was asked for, is granted, is wholly irregular; the order not being a mandatory injunction, a mandamus, or an order for a mandamus.

2. Same—Affidavits.

On- application for mandamus, not only should the affidavit of defendant be accepted as a return, but an affidavit replying thereto should not be received.

Appeal from Special Term.

Proceedings by the people, on the relation of Michael Brennan, against Louis F. Haffen, president of the borough of the Bronx. From an order directing defendant to issue a permit, he appeals. Reversed, and motion denied.

Argued before PATTERSON, P. J., and McLAUGHLIN LAUGHLIN, CLARKE, and SCOTT, JJ.

Theodore Connoly, for appellant.

Lawrence E. French, for respondent.

The defendant appeals from a peremptory order, made upon an order to show cause and affidavits requiring the defendant to issue a permit to Michael Brennan, designated as the relator, authorizing him to move a building along and across certain highways in the borough of the Bronx, in the city of New York. There is no authority for granting such an order in this form. It is not made in any action or recognized form of special proceeding, and is-neither a mandatory injunction, nor a mandamus, nor an order for a mandamus. The papers are entitled "People of the State of New York, upon the Relation of Michael Brennan, v. Louis F. Haffen, President of the Borough of the Bronx,” which seems to indicate that the so-called relator intended to apply for a mandamus. He asked, however, only for a peremptory order, and that is what was granted. If the proceeding had been treated as an application for a mandamus, the affidavit of the defendant should have been accepted as a return, and it would have been irregular and improper to receive, as was done, an affidavit from the so-called relator replying to the defendant’s affidavit. The proceeding was wholly irregular, and the order unauthorized. Furthermore, it was erroneous. . The question involved and sought to be raised was expressly decided by this court, adversely to the relator’s contention, in Matter of Ewing, 119 App. Div. 889 , 105 N. Y. Supp. 1137 , affirming an order of Mr. Justice O’Gorman refusing a similar application, although in that case the relator adopted a proper form of procedure.

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.