People ex rel. Lester v. Mitchell — 39 N.Y. St. Rep. 767

Majority

p. 767

The People ex rel. George H. Lester, Resp’t, v. Edward Mitchell, as Mayor of the City of Oswego, and John Dowdle, App’lts.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

Mandamus—Appeal. '

An appeal will not lie from an order granting an alternative writ of mandamus. The granting of such 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.

Appeal from an order allowed on a motion made at the Oswego special term, allowing an alternative writ of mandamus to issue against Edward Mitchell, as mayor of Oswego city, “ directed to the said Edward Mitchell, as mayor of the city of Oswego, commanding him forthwith to appoint George H. Lester, the relator, to the office of city chamberlain of the city of Oswego, or to show cause to the contrary at the office of the clerk of Oswego county, in the city of Oswego, in said county, within twenty days after the service of said writ upon him; ” which order also "denied the relator’s application for a peremptory writ of mandamus. "The -notice of appeal appears to be from the whole order, although, after describing the order, the following words are found in the notice of appeal, to wit: “ which order directs that an alternative writ of mandamus issue out of and under the seal of this court, directed to the said Edward Mitchell, as mayor of the city of Oswego, etc.”

Thomas H. King and John B. Higgins, for' app’lts; Lester & Smith, for resp’t.

—In People v. Ransom, 2 N. Y., 490 , it was said, that “an alternative mandamus is in the nature of a declaration.”

p. 768

In Fiero on Special Proceedings, at page 72, it is said : “ The writ of alternative mandamus is, when granted in the first instance, in the nature of an order to show causa People v. Rensselaer Common Pleas, 3 How., 164 ; Bank v. Canal Com., 10 Wend., 25 . But also stands as a pleading. People v. Ovenshire, 41 How., 164 .”

In People ex rel. McMackin v. Board of Police, 107 N. Y., 235 ; 11 N. Y. State Rep., 412, the court, in considering the nature of a writ of mandamus, says that when it is “ asked against public officers to compel the performance of an alleged public duty, the granting or refusing of the writ is somewhat a matter of discretion.”

The special term having exercised its discretion in the case before us in allowing an alternative writ of mandamus, we see no occasion to disturb the result of that discretion.

In People v. Board of Supervisors, 3 N. Y. Supp., 752 ; 19 N. Y. State Rep., 24, we said : “ Whether mandamus was a proper remedy, ana whether the relator had another legal remedy, were, we think, questions that should have been raised by a return to the writ, or by a demurrer, as provided for by § 2076 of the Code of Civil Procedure, and not by motion.” Applying the doctrine of that case we may appropriately say that such questions are not fairly before us on this appeal.

It is provided by § 2087 of the Code of Civil Procedure that “ An appeal from a final order made upon an alternative mandamus must be taken as an appeal from a judgment; and each provision of law relating to an appeal from a judgment, either to-the general term or to the court of appeals, is applicable thereto.,r It may be observed that if there shall be a final order made in these proceedings upon “ an alternative mandamus " that the party against whom the order is made may have his remedy "in virtue of that section.

(2) Regarding, as we think we should, the appeal before us as bringing up that part of the order which refused a peremptory mandamus, it may be observed there is no occasion to reverse that part of the order. It seems the question which the relator-seeks to have determined in these proceedings is like the one presented to this court in People ex rel. Hall v. President, etc., of the Village of Little Falls, 29 N. Y. State Rep., 723. That decision seems to be adverse to the relator; however, we do not consider it opportune to pass upon the merits of the application made by the relator at this time; however, we think the order made at special term should remain.

Order affirmed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concur.