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People ex rel. Levenson v. O'Donnell

90 N.Y.S. 961 Court N.Y. App. Div. Decision date 1904-12-09 English

Delivered by O’BRIEN, J.

Contents

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p. 961
(99 App. Div. 253)
PEOPLE ex rel. LEVENSON v. O’DONNELL et al., Tax Com’rs.
(Supreme Court, Appellate Division, First Department.
December 9, 1904.)

Headnote

1. Appealable Orders—Alternative Mandamus.
An order granting an alternative writ of mandamus is not appealable.
Appeal from Special Term, New York County.
Application in the name of the people of the state on the relation of Nathan B. Levenson for an alternative writ of mandamus to Frank A. O’Donnell and others. From an order granting the writ, defendants appeal.
Dismissed.
Argued before VAN BRUNT, P. J., and HATCH, McLAUGH-LIN, O’BRIEN, and INGRAHAM, JJ.
William B. Crowell, for appellants.
Edgar M. Leventritt, for respondent.

The respondent contends that the order is not appealable. The question has never been directly passed upon in this department, but it has been a frequent subject of discussion and adjudication in the other departments, and therefore, aside from what would be the opinion of any of the members of this court, were the question a new one, we regard the contention of the respondent as too strongly fortified by precedent and authority to warrant our adopting a contrary view. People v. Ransom, 2 N. Y. 490 ; People v. Mitchell (Sup.) 15 N. Y. Supp. 305 ; People ex rel. Ackerman v. Dumb, 6 App. Div. 26 , 39 N. Y. Supp. 514 ; People ex rel. Ranton v. City of Syracuse, 88 Hun, 203 , 34 N. Y. Supp. 661 ; Matter of Kreischer, 30 App. Div. 313 , 51 N. Y. Supp. 802 ; Matter of Goodwin, 30 App. Div. 418 , 51 N. Y. Supp. 355 .

In People ex rel. Ackerman v. Lumb, 6 App. Div. 26 , 39 N. Y. Supp. 514 , it was said:

“The order is not appealable. * * * An alternative mandamus is in the nature of an order to show cause. * * * It does not affect a substantial right because it determines nothing against the respondents or in favor of the relator. It cannot be quashed or set aside for any matter involving the merits. * * * An appeal from an order made in a special proceeding, like an appeal from an order made in an action, lies only when it affects a substantial right.”
p. 962
And in People v. Mitchell, supra, a decision of the fourth department, it was held (headnote) that:
“An appeal will not lie from an order granting an alternative writ of mandamus. The granting of such a writ is a matter of discretion, and the remedy of a person aggrieved thereby is by appeal from the final order made in the proceeding.”

The appeal, accordingly, should be dismissed, with $10 costs and disbursements. All concur.

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