People ex rel. Toy v. Mayer — 53 N.Y. St. Rep. 862

Majority

p. 862

The People ex rel. Daniel S. Toy, Resp’t, v. Alexander U. Mayer, Com’r, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Prohibition—Practice .

Where there is no question as to the merits of the application, but only a question of law is involved, it is not error to issue a peremptory writ of prohibition on the return of the order to show cause, instead of an alternative writ.

Appeal from order granting relator’s motion for a writ of prohibition, and from order denying motion to set aside the absolute writ issued against defendant.

Relator appeared before the defendant, who was appointed a commissioner by the superior court of Baltimore to propound certain interrogatories to relator, and answered the same except as to certain declarations made to him by one Johnson, which he refused to state on the ground that they were in the nature of a confession made to him as a minister of the gospel in a course of

p. 863

discipline enjoined by the Baptist church. The commissioner overruled the objection and ordered him to answer, which relator refused to do, and thereupon defendant declared that he would issue his warrant to arrest relator for contempt.

Relator thereupon procured an order to show cause, upon the return to which an absolute writ of prohibition was issued restraining defendant from issuing any commitment or doing any act to compel an answer by relator or to interfere with his liberty.

Alexander U. Mayer, app’lt in person; David H. Hunt, for resp’t.

There is no merit in this appeal. The only point made is that a peremptory writ of prohibition was issued instead of an alternative writ. Ho point is made that this was not a proper case for such writ or that the facts did not warrant it, but only that an alternative writ should have been issued.

A hearing upon the merits was had upon an order .to show cause which in effect fully answered the purpose of an alternative writ.

The object of the proceeding was to prevent the defendant from oppressively and illegally committing the relator to prison; and the fact that it was called a writ of prohibition is not material so long as the decision was right upon the merits and a proper result was accomplished.

Ho object could have been served by issuing an alternative writ as it appeared that only a question of law was involved and a short cut was adopted to accomplish a just result.

Order affirmed, with costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.