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In re Rexford Flats Bridge Co.

153 N.Y.S. 154 Court N.Y. App. Div. Decision date 1915-05-05 English

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p. 154
In re REXFORD FLATS BRIDGE CO.
(Supreme Court, Appellate Division, Third Department.
May 5, 1915.)

Headnote

1. Mandamus @=>181—Issuance of Peremptory Writ—Opposing Affidavits.
On motion for a peremptory writ of mandamus, averments in opposing affidavits will be deemed true.
[E'd. Note.—For other cases, see Mandamus, Cent. Dig.- §§ 401-404, 406, 408, 409, 418; Dec. Dig. @=>181.]
2. Mandamus @=>181—Application for Peremptory Writ—Demurrer.
A demand by relator for a peremptory writ, notwithstanding conflicting statements in the affidavits, is equivalent to a demurrer, and the question presented must be determined on the assumption of the truth of respondent’s affidavits.
[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 401-404, 406, 408, 409, 418; Dec. Dig. @=>181.]
3. Mandamus @=>181—Peremptory Writ—Issuance—Evidence.
A peremptory writ of mandamus will not issue, where there is any dispute as to the facts.
<g^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
p. 155
4. Mandamus <@=>181—Peremptory Writ—Issues.
Where an opposing affidavit puts in issue the allegation essential to entitle relator to a peremptory writ of mandamus, the writ must be denied.
[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 401-404, 406, 408, 409, 418; Dec. Dig. <@=>181.]
@^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Special Term, Montgomery County.
Application for mandamus by the Rexford Flats Bridge Company against the Canal Board and others. From an order denying a peremptory writ, relator appeals.
Affirmed.
The following is the opinion of Borst, J., at Special Term:
[1] On a motion for a peremptory writ of mandamus, the allegations in the opposing affidavits will be considered to be true. People ex rel. Rau v. York, 31 App. Div. 527 , 52 N. Y. Supp. 401 , 1060; People ex rel. Croft v. Keating, 49 App. Div. 123 , 63 N. Y. Supp. 71 ; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390 , 61 N. E. 637 .
[2] If the relator, notwithstanding the conflicting statements in the affidavits, still demands a peremptory mandamus, this is equivalent to a demurrer, and the question thus presented must be determined upon the assumption of the truth of the affidavits presented by the respondents. People ex rel. Savings Bank v. Cromwell, 102 N. Y. 477 , 8 N. E. 413 ; People ex rel. Corrigan v. Mayor, 149 N. Y. 215 , 43 N. E. 554 ; In re Haebler v. N. Y. Produce Exchange, 149 N. Y. 414 , 44 N. E. 87 .
[3] A peremptory writ of mandamus will not issue, except in ease of clear, unquestioned legal rights. It should not be granted if there is any dispute on the facts involved in the question presented. People ex rel. v. Supervisors, 64 N. Y. 600 ; People ex rel. v. Wendell, 71 N. Y. 171 .
[4] Mr. Peck in his affidavit, says: “I deny that the acts of the state officers, including the closing of the dam,.were the cause of the destruction of the bridge.” This puts in issue the allegation which is essential to have clearly established, beyond controversy, to entitle relator to a peremptory writ. Without considering the merit of other denials or attempted denials, it is quite evident that this statement or rather denial by Mr. Peck cannot be accepted as true and yet have the writ issue. Where there is a controversy about the facts, the writ ought not to issue. It is an extraordinary remedy and ought only to be granted when the facts and law entitle the relator to it beyond question. This cannot be said to be the situation of the application for the peremptory writ in this case. This makes it unnecessary to determine the right of the relator to the writ, if it be conceded that the destruction of the bridge was caused by the acts of the canal board and its members.
If the relator desires to have an alternative writ issue, this will be done. Otherwise the application for the writ must be denied.
Argued before SMITH, P*. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
Thomas O’Connor, of Waterford, for appellant.
Egburt E. Woodbury, Atty. Gen. (Wilbur W. Chambers, Deputy Atty. Gen., of counsel), for respondents.

Order affirmed, with costs, upon the opinion of Justice Borst, at'Special Term. All concur, except HOWARD, J., dissenting.

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