Bush v. McKenzie

New York Supreme Court

Bush v. McKenzie

21 N.Y.S. 279, 49 N.Y. St. Rep. 527

DecidedDecember 8, 1892

StatusPublished

This text of 21 N.Y.S. 279 (Bush v. McKenzie) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bush v. McKenzie, 21 N.Y.S. 279, 49 N.Y. St. Rep. 527 (N.Y. Super. Ct. 1892).

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Opinions

PUTNAM, J.

The order should be affirmed, on the opinion of the court below. The relator was not entitled to alternative writ of mandamus. People v. Fairman, 91 N. Y. 387.¹ Order affirmed, with $10 costs and printing.

¹

In this case the court said: “The relator cannot now complain that the court passed upon the motion for a peremptory writ, instead of awarding an alternative writ. The motion was for a peremptory writ, and it does not appear that any application was made for an alternative writ; hut, on the contrary, that after the respondent had read affidavits in justification of his own action, and controverting the 'allegations of the relator, the latter, without introducing any further papers, proceeded to argue and submit his motion for a peremptory writ on the papers then before the court, in the face of the rule declared in People v. Supervisors, 73 N. Y 173, that such a course is equivalent to a demurrer to the facts set up by the respondent. The rule is well stated in the'syllabus to be that, after such conduct, “he cannot complain if the court pass upon the motion, instead of ordering an alternative writ. ”

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PUTNAM, J.

The order should be affirmed, on the opinion of the court below. The relator was not entitled to alternative writ of mandamus. People v. Fairman, 91 N. Y. 387.¹ Order affirmed, with $10 costs and printing.

¹

In this case the court said: “The relator cannot now complain that the court passed upon the motion for a peremptory writ, instead of awarding an alternative writ. The motion was for a peremptory writ, and it does not appear that any application was made for an alternative writ; hut, on the contrary, that after the respondent had read affidavits in justification of his own action, and controverting the 'allegations of the relator, the latter, without introducing any further papers, proceeded to argue and submit his motion for a peremptory writ on the papers then before the court, in the face of the rule declared in People v. Supervisors, 73 N. Y 173, that such a course is equivalent to a demurrer to the facts set up by the respondent. The rule is well stated in the'syllabus to be that, after such conduct, “he cannot complain if the court pass upon the motion, instead of ordering an alternative writ. ”

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Bluebook (online)

21 N.Y.S. 279, 49 N.Y. St. Rep. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-mckenzie-nysupct-1892.