People ex rel. Doran v. Harwick

Woodward, J.: The order appealed from was granted in an action brought by the plaintiffs for the same relief granted in the writ, and it is urged on •appeal that the court.had no jurisdiction to grant a peremptory writ -of mandamus, as the proceeding was not brought in the name of the People on the relation of the plaintiffs, as required by section 1994 of the Code of Civil Procedure. Aside from the brief submitted by the respondents, we find no suggestion that the proceéding was instituted in behalf of the People on the relation of any -one. We do not understand that the provisions of section 2070. of the Code of Civil Procedure, that “ A peremptory writ of mandamus may be issued, in the first instance, where the applicant’s right to the mandamus depends only upon questions of law,” in anywise -dispenses with the necessity of complying with the provisions of •section 1994. All that section 2070 is intended to accomplish is to •authorize the court, where a proceeding has been properly commenced upon the relation of a person, to grant the writ in the first instance where, there is no dispute of material facts, and the right to the writ- depends purely upon a question of law. It does "not do sway with the necessity of conforming to the regular rules "of [561] practice outlined by the' Code of Civil Procedure in the commencement of the action or special proceeding. It seems clear, even should the question of practice be waived, that the moving papers and affidavits of both parties'being taken into consideration, there is no justification for a peremptory writ of mandamus to issue; there are questions of fact raised which may not be summarily disposed of by the court. A considerable portion of the complaint is made on information and belief, and is not, therefore, to be treated as an affidavit under the rule laid down in Cushing v. Ruslander (49 Hun, 19, 23). The answer is for the most part a denial of the allegations of the complaint, while the affidavits of the defendants which, for the purposes of the proceeding are to be regarded as being true (People ex rel. German-American Loan & Trust Co. v. Richards, 99 N. Y. 620), raise issues which must be determined before a question of law niay be said to be presented. (See Code Civ. Proc. § 2070, last clause.) The order appealed from should be reversed, and the motion for a peremptory writ of mandamus denied, with costs. All concurred. Order reversed, with ten dollars costs and disbursements, and application for peremptory writ of mandamus denied.