Hyperlawhypertext legal databasebeta People ex rel. Ripp v. Town Board of Lewis 59 N.Y.S. 248

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People ex rel. Ripp v. Town Board of Lewis

59 N.Y.S. 248 Court N.Y. Sup. Ct. English

Delivered by *249 HISCOCK, J.

Contents

Majority

p. 248
(27 Misc. Rep. 469.)
PEOPLE ex rel. RIPP v. TOWN BOARD OF TOWN OF LEWIS et al.
(Supreme Court, Special Term, Onondaga County.
May, 1899.)

Headnote

1. Mandamus—Towns—Allowance op Claims.
An alternative writ of mandamus is not demurrable on the ground that the writ does not run in the name of the people. Defendant’s remedy is by motion made before general appearance and demurrer.
2. Same.
Where a town board which has passed on a claim does not make and ■ file a certificate showing its rejection or allowance, as required by Laws 1890, .c. 569, § 162, mandamus will lie to compel the board to make and file the certificate.
Mandamus by the people, on the relation of Mattis Ripp, against the town board of the town of Lewis and others, defendants, to compel the board to pass on relator’s claim against the town. Heard on
demurrer to alternative writ.
Demurrer sustained in part, and overruled in part.
E. M. Bagg, for relator.
F. O. Schraub, for defendants.

Some objections are urged by the defendants to the alternative writ herein which are not applicable upon the argument to sustain their demurrer. The defendants cannot avail themselves of the absence of the ordinary form whereby the writ is issued in the name of the people, even if material. The proper remedy for that was by motion before they had appeared generally in the action and demurred.

Notwithstanding the allegation in the writ and in the relator’s affidavit that the town: board did not consider his bills upon the merits, I think the other facts stated therein show that the town board did so consider and pass upon them upon the merits, allowing them in part, and rejecting them in part. Therefore, so far as the writ seeks to compel the town board to assemble and pass upon his claims upon the merits, it is demurrable. 'From the facts as stated, however, the town board did not pass upon the claims and make the certificate as required by law (section 162, c. 569, Laws 1890). It very likely may be material to relator that they should be so passed upon. In this respect, therefore, a good ground is presented for the issuance of the writ, and to this extent the demurrer is overruled. The defendants have leave to make a return to the writ at any time within 20 days, upon payment of $15 costs. Ordered accordingly.