People ex rel. Roberts v. Cannedy — 66 N.Y.S. 961

Majority

p. 961

PEOPLE ex rel. ROBERTS v. CANNEDY et al.

(Supreme Court, Appellate Division, Second Department.

November 23, 1900.)

Headnote

Mandamus—Removal of Cause Pending Appeal.

Where pending the proceedings the object sought to be reached by a writ of mandamus has been accomplished by another proceeding, the merits of an order denying the writ will not be reviewed on appeal.

Appeal from special term, Kings county.

Mandamus, on the relation of George I. Roberts, against Charles F. Cannedy, as president of the board of education of the city of New Rochelle, and others. From an order denying the writ, applicant appeals.

Modified as to costs, and affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Roger M. Sherman, for appellant.

Michael J. Tierney, for respondents.

Our decision in the case of Lorenzen v. Dillon (Oct. 5, 1900) 66 N. Y. Supp. 1136 , would seem to have destroyed the validity of these proceedings. We there affirmed on the arguments an order enjoining the issue of bonds because of the illegality of the election called for the purpose of appropriating money for a high school. The application in this proceeding for a writ of mandamus, although nominally to compel a lawful submission to the qualified voters of the question of the appropriation, is manifestly based on hostility to the entire scheme, and its purpose has been accomplished by the result in the principal appeal. Without passing on the merits of this application, we. deem it proper that the proceeding should be terminated.

The order appealed from is modified by striking out the provision imposing costs, and as so modified is affirmed, without costs in this court to either party.