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Martin v. W. J. Johnson Co.

38 N.Y. St. Rep. 885 Court N.Y. Decision date 1891-06-23 English

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p. 885
In the Matter of the Petition of Thomas C. Martin, Resp’t, v. The W. J. Johnson Co., Limited, App’lt.[1]
(Court of Appeals,
Filed June 23, 1891.)

Headnote

Mandamus—Appeal.
Where the special term has granted a writ of mandamus with costs, and upon a stay being denied defendant complies with the writ, pays costs and appeals to the general term, that court must hear the case upon the merits and it is error for it to dismiss the appeal on the ground that it was not a practical question.
Appeal from judgment of the supreme court, general term, first department, dismissing appeal from order granting writ of mandamus, requiring defendant to allow an examination of its books.
Mason F. Prosser, for app’lt; Arthur H. Masten, for resp’t.

The special term granted the writ, with costs.

The defendant asked for a stay pending an appeal, which was denied. It then complied with the writ and paid the costs, and appealed to the general term. That court dismissed the appeal on the ground that it was not a practical question, as the terms of the writ of mandamus had been complied with.

The court should have heard the case on the merits, because there was a question of costs which defendant had paid, and which it would be entitled to have restored to it, in case the order were reversed.

Order of general term reversed, and case remitted to that court, with directions to hear the appeal upon the merits, with costs of this court upon this appeal to appellant, to abide the event of the appeal to the general term.

All concur, except Finch, J., absent