People ex rel. Rodler v. Deutscher Krieger Bund New York

Majority

p. 367

PEOPLE ex rel. RODLER v. DEUTSCHER KRIEGER BUND NEW YORK et al.

(Supreme Court, Appellate Division, First Department.

December 11, 1908.)

Headnote

1. Mandamus (§ 177^[1] )—False Return to Writ—Damages.

Damages for false return to a writ of mandamus should not include relator’s counsel fees or other disbursements óf the trial.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 395; Dec. Dig. § 177.*]

2. Mandamus (§ 190*)—Costs.

By express provision of Code Civ. Proc. § 2086, costs may be awarded as in an action where an alternative writ of mandamus has been issued.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 438: Dec. Dig. §190.*] '

Appeal from Special Term, New York County.

Mandamus, on the relation of Albert Rodler, against the Deutscher Krieger Bund New York, impleaded with Charles Simonis as president of the Ninth Company Deutscher Krieger Bund New York. From an order directing the issuance of a peremptory writ reinstating the relator to membership in defendant organization, and from orders granting an alternative writ and denying a motion for a stay of proceedings, said organization appeals.

Modified and affirmed.

Argued before PATTERSON, P. J„ and McDAUGHRIN, LAUGHEIN, HOUGHTON, and SCOTT, JJ.

August P. Wagener, for appellant.

Alfred B. Jaworower, for respondent.

We are of the opinion that the writ restoring the relator to membership in the appellant organization was properly issued and that the court did not err in granting the alternative writ or denying the motion for a stay. One of the findings upon which the judgment was entered was to the effect that the relator was entitled to recover the costs of the proceeding at the same rate as in an action to be taxed, and also certain disbursements, together with $150 as damages for a false return. The judgment entered simply awarded the plaintiff $150 as damages for a false return and $18 disbursements. The final order directed that the relator recover $150 as damages assessed for counsel fees and $18 as disbursements, making a total of $168.

Damages for a false return to a writ of mandamus should not include the relator’s counsel fees or other disbursements of the trial. People ex rel. Lally v. New York Central & Hudson River R. Co., 116

p. 368

App. Div. 849 , 102 N. Y. Supp. 385 . So far as the judgment and final order award damages for counsel fees, the same are erroneous. It is evident from the findings that the court intended to award costs to the relator as in an action. This it had a right to do. Section 2086 of the Code of Civil Procedure expressly provides that, where an alternative writ of mandamus has been issued, costs may be awarded as in an action.

We think, therefore, that the judgment should be modified, by striking out the award of $150 damages and $18 disbursements, and inserting in place thereof a provision to the effect that the relator is entitled to recover costs, including disbursements, in the proceeding as in an action. Then the judgment in this respect will conform to the finding. The final order should also be modified by striking therefrom the provision that the relator is entitled to recover from the respondent “the sum of $150 as damages assessed for counsel fees and the sum of $18 as disbursements,” and inserting in place thereof a provision to the effect that the relator is entitled to recover from the respondent the costs and disbursements of the proceeding as in an action, to be taxed by the clerk in the manner provided by statute.

As thus modified, the orders and judgment appealed from are affirmed, without costs to either party in this court.