In re Schwager — 36 N.Y. St. Rep. 534

Majority

p. 534

In the Matter of the Application of August C. Schwager for a Writ of Mandamus.^[1]

(Supreme Court, General Term, First Department,

Filed January 16, 1891.)

Headnote

1. Appeal—When will hot be cohsedered.

When the condition of any legal proceeding is such that no benefit whatever can be derived by the appellant from a decision, the appellate court will decline its consideration.

2. Same—Costs.

Where the court, at the time of the decision of an application, could afford the applicant no relief, even if his position was legally entitled to he sustained, the application should he dismissed without costs.

Appeal by August 0. Schwager from an order denying his application for a writ of peremptory mandamus.

Henry R. Beehnan and Lewis L. Delafield, for app’lt; Charles Blandy, for resp’t.

The appellant, being a candidate for the office of alderman, in the nineteenth assembly district in the city of New York, applied to the board of police commissioners to prepare, print, and distribute through the district two sets of ballots containing his name as an aldermanic candidate to be voted at the election in November, in the year 1890. They conceded the right to have the name placed on one set of the ballots, but beyond that denied it.

To secure compliance with his application to place the name upon two sets of the ballots, he applied upon notice for a peremptory mandamus. This application was denied by an order made on the 10th day of November, which was after the election bad taken place, and on or about the 14th of November he took this appeal from the order. It is plain, therefore, that no practical effect can now by any possibility be promoted by considering the merits of the petitioner’s application to the commissioners.

p. 535

The time has expired within which any possible advantage can be obtained by the appellant. If the court should be of the opinion, upon an examination of the provisions of the statute, that the applicant should have had his name printed upon two sets of ballots, not the slightest benefit could be derived by him from the decision. And when that appears to be the condition of any legal proceeding, it is the settled practice to decline its consideration. The continued pressure upon the time of this court is too great to permit any part of it to be devoted to the solution of merely speculative controversies. And the authorities are decidedly against that use of it. Hyatt v. Dusenbury, 8 N. Y. State Rep., 713; People v. Grace, 16 id., 1011; People v. Board, etc., of Cohoes, 11. N. Y. Sup., 296; 33 N. Y. State Rep., 30; People v. Squire, 110 N. Y., 666 ; 18 N. Y. State Rep., 528.

The fact that costs have been awarded against the applicant will not avoid the effect of this principle. As the court could, at the time of the decision, afford him no relief, even if his position was legally entitled to be sustained, the application should have been dismissed, without costs. And the order may very well be so far modified as to now give that direction. The order should, therefore, be changed to that effect. And as so modified the order should be affirmed, without costs.

Yam Brumt, P. J„ and Brady, J., concur.