People ex rel. Village of Fulton v. Board of Supervisors

Majority

p. 751

People ex rel. Village of Fulton v. Board of Supervisors.

(Supreme Court, General Term, Fourth Department.

November, 1888.)

Headnote

1. Mandamus—Procedure—Objections Raised on Motion.

Under Code Civil Proo. N. Y. § 2075, providing that an alternative writ of mcm damus cannot be quashed or set aside on motion, for any matter involving the merits, the questions whether mandamus is the proper remedy, and whether the relator has another legal remedy, cannot be raised on motion.

2. Same—When Granted—Adjourned Term.

As an alternative writ of mandamus may, under Code Civil Proc. § 2068, be granted without notice, it may be granted at a regularly adjourned special term.

3. Holidays—Saturday Afternoons—Service of Mandamus.

Laws 1887, c. 289, providing that Saturday afternoons shall be considered as Sunday, and as public half-holidays “for all purposes whatsoever, as regards the transaction of business in the public offices of this state or counties of this state, ” does not prohibit the service of a writ of mandamus on Saturday afternoon. Such service is not the transaction of business in the public offices, etc.

Appeal from special term, Oswego county.

Mandamus on the relation of the village of Pulton against the board of supervisors of the county of Oswego. Respondent appeals from an order refusing its motion to set aside the alternative writ.

Argued before Hardin, P. J., and Pollett and Martin, JJ.

TI. D. Nutting, for appellant. Mead & Stranahan, for respondent.

This was an appeal from an order denying the appellant’s motion to vacate and set aside an alternative writ of mandamus issued upon an order made at an adjourned special term of this court held in the county of

p. 752

Oswego. The motion was based on the grounds—First, that the papers-herein were served on a half-holiday; second,.that the writ or order of mandamus herein was applied for, made, and granted at an adjourned special term of this court; third, the mandamus herein was not, and a mandamus is not, the relator’s proper remedy; fourth, the relator had another legal rem- • edy The writ required the appellant to vacate the former audit of the relator’s claim, and audit, allow, provide for the payment of, and pay, the claim-of the relator in full, or to show cause to the contrary, etc. It does not appear that any return or demurrer to this writ has been filed.

One of the questions presented is whether the appellant could, upon a mo- • tion to set aside the relator’s writ, avail itself of the objection that mandamus was not the relator’s proper remedy, or that it had another legal remedy. Section 2075 of the Code of Civil Procedure provides: “An alternative writ-of mandamus cannot be quashed or set aside upon motion, for any matter-involving the merits.” This is the mandate of the statute. The question presented by these two grounds of the appellant’s motion was whether, upon the facts stated in the writ, the relator was entitled to the relief demanded. That question involved the merits of this action. Whether mandamus was-a proper remedy, and whether the relator had another legal remedy, were, we-think, questions that should have been raised by a return to the writ, or by a demurrer, as provided for by section 2076 of the Code of Civil Procedure, and not by motion.

This leads us to examine the other grounds of this motion. First, then, should the writ have been vacated because the papers and writ were served on Saturday after 12 o’clock m.? The statute (Laws 1887, c. 289, amending chapter 27, Laws 1875, as amended by chapter 30, Laws 1881) which makes-Saturday afternoon a half-holiday provides: “The * * * half-holidays-aforesaid shall be considered as the first day of the week, (commonly called Sunday,) and as public * * * half-holidays for all purposes whatsoever, as regards the transaction of business in the public offices of this state, or counties of this state.” In the case of People v. Kearney, 47 Hun, 129 , this-court had occasion to examine that statute, and it was there held that the statute did not prohibit the holding of courts on Saturday afternoon. As was said in that case, this provision is a limited one; it relates only to the transaction of business in the public offices of the state and counties. Surely the service of the papers in this case cannot be regarded -as the transaction of business in a public office of the state, or in a public office of the county. We-do not think the language of this statute broad enough to prevent the service-of process or papers on Saturday after 12 o’clock m„ nor do we think such was-its purpose or intent. Nichols v. Kelsey, 13 Civil Proc. R. 154; Fries v. Coar, Id. 152 .

This leaves for consideration only the question whether the writ could be-properly granted at an-adjourned special term of this court. That the term at which this writ was granted was regularly adjourned, as provided for by section 239 of the Code of Civil Procedure, and that it existed as a regularly-adjourned special term, is not questioned: In Re Wadley, 29 Hun, 12 , it was held that ex parte motions might, of course, be heard at terms adjourned to-a judge’s chambers, but that contested motions requiring notice could not. That a motion which can be properly made at any special term can, where no-notice is required, be made at a properly adjourned special term, we have no doubt. An alternative writ of mandamus, except when special provision is otherwise made, can only be granted at a special term. Code Civil Proc. § 2068. But it maybe granted, with or without notice, as the court thinks proper. Section 2067. The writ in this case was granted without notice, and. hence could be properly granted at an adjourned term. We are of the opinion that the appellant’s motion was properly denied, and that the order appealed from should be affirmed. Order affirmed, with $10 costs, and printing, disbursements. All concur.