Carey v. Moore

244 A.D. 763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1935
• Status: Published

Opinion

Application denied. Per Curiam. There are three reasons why we cannot and do not pass upon the question sought to be raised by the petitioner on this motion. (1) From the moving papers it appears that a motion for the same relief was made at Special Term and that the motion was denied. Under these circumstances petitioner’s relief is by appeal rather than by a mandamus order. If the formal order has not been entered, so as to permit an appeal to be taken, petitioner has his remedy. If a party entitled to enter an order fails to do so promptly after the decision has been made, any interested party may have it drawn and entered. (Matter of Rhinebeck & Conn. R. R. Co., 8 Hun, 34.) The omission to enter an order does not give the right to again agitate the question by a second motion. (Peet v. Cowenhoven, 14 Abb. Pr. 56.) (2) This motion is made to this court in the first instance, Except where special provision is otherwise made in the Civil Practice Act, a mandamus order can be granted only at Special Term. (Civ. Prac. Act, § 1317.) The Appellate Division is given authority to grant such an order only when it is directed generally against any judge holding or to hold a Special Term of the same court, or directed against one or more judges of the same court named therein, in any ease where such order may be issued out of the Supreme Court against any other court, or a judge thereof. (Civ. Prac. Act, § 1318.) Here it is sought to mandamus the Board of Parole. (3) It does not appear that notice has been given the Board of Parole. Previous notice of the application for a mandamus order, whether alternative or peremptory, must be given to the Board from which relief is sought. (Civ. Prac. Act, §§ 1315, 1319.)