Blumenthal v. Washington Heights Hospital — 153 N.Y.S. 946

Majority

p. 946

BLUMENTHAL v. WASHINGTON HEIGHTS HOSPITAL (two cases). AVERY v. SAME.

(Nos. 7506-7508.)

(Supreme Court, Appellate Division, First Department.

June, 1915.)

Headnote

Mandamus <§=>181—Disputed Facts—Peremptory Writ—Alternative Writ.

Where direct issues oí fact are presented in the moving, and answering and replying affidavits, the issuance of a peremptory writi of mandamus is error. \

[Ed. Note.—For other cases, see Mandamus, Cent Dig. §§\401-404, 406, 408, 409, 418; Dec. Dig. <§=181J \

<Sz=sFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, New York County.

Applications for writs of mandamus by Henry A. Blumendhal, by Manus J. Blumenthal, and by Ledyard Avery against the Washington Heights Hospital. From orders granting peremptory writs, respctadent appeals.

Reversed, and alternative writs granted.

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

p. 947

Leo R. Brilles, of New York City, for appellant.

I. Balch Louis, of New York City, for respondents.

As direct issues of fact are presented upon the moving and answering and replying affidavits, the direction for the issuance of a peremptory writ of mandamus was error.

The orders appeáled from are therefore reversed, with $10 costs and disbursements, the motions for a peremptory writ denied, and alternative writs granted.