People ex rel. Kavanagh v. Grady — 46 N.Y.S. 645

Majority

p. 645

(20 App. Div. 27.)

PEOPLE ex rel. KAVANAGH v. GRADY et al.

(Supreme Court, Appellate Division, Second Department.

July 13, 1897.)

Headnote

Appeal—Refusal of Mandamus—Procedure.

The provision of Code Civ. Proc. § 2068, that a writ of mandamus can-be granted only at a special term of the court, applies only to an original application for the writ; and on an appeal from an order denying such an application the appellate division may make an order for the issue of the-writ, which requires no action of the special term.

Application by the people, on the. relation of Owen J. Kavanagh,, for a writ of mandamus against John T. Grady and others, composing-the board of police commissioners of Long Island City.

Defendants committed for contempt.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT,,. HATCH, and BRADLEY, JJ

William E. Smith, for apnlicant.

Thomas P. Burke, for respondents.

We are of opinion that the objection to the regularity of the writ of mandamus served on the respondents, in that it was issued on the order of this branch of the court instead of by the order of the special term, is not well founded. The provisions of section 2068 of the Code of Civil Procedure that a writ of mandamus can be granted only at a special term of the court apply only to an original application for the writ. That section does not limit the effect of section 1317 of the Code that on appeal the appellate division may reverse, affirm, or modify any order appealed to it. The-authority for the issue of a writ in this case was the order of this, division, made on an appeal from an order denying the application for the writ. The order of this branch of the court required no action by the special term to give it full vitality and effect.

Defendants should be convicted of contempt, and fined the sum of $10, and ordered to stand committed to the common jail of Queens county until they comply with the terms of the writ.