People ex rel. Delano v. Tuthill

We cannot conclude positively that the answering affidavits did not raise an issue of a contract, not express but implied, to accept the reduced rate of payment for this advertising. Under the general rule declared in People ex rel. McMackin v. Board of Police (107 N. Y. 240), followed in People ex rel. Van Deren v. Moore (78 App. Div. 28), as to the construction of pleadings, we reverse the order, without costs, and deny the motion for a peremptory writ, without costs. The relator may have an order for an alternative writ, without costs, if he be so advised. We express no [946] opinion upon the merits. Jenks, P. J., Mills, Rich, Blackmar and Kelly, JJ., concurred. Order to be settled before the presiding justice.