Majority
p. 504In the Matter of the Application of Thomas Commerford Martin, Respondent, for a Peremptory Writ of Mandamus, v. The W. J. Johnston Company (Limited), Appellant. Court of Appeals, June 23, 1891.
Headnote
Appeal. Dismissal.—It is error for the general term to dismiss an appeal from a special term order granting a writ of mandamus with costs on the ground that it involved no practical question, for the reason that, upon a denial of a stay pending appeal, the order had been complied with and costs paid, but the case must be heard on the merits.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 appellant.
Arthur H. Masten, for respondent.
The special term granted the writ, with costs.
p. 505
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.