In re Bohnet

8 A.D. 293, 40 N.Y.S. 1140, 1896 N.Y. App. Div. LEXIS 2322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

This proceeding was commenced to obtain a peremptory mandamus requiring the mayor, etc., of the city of Mew York, the commissioner of public works and the superintendent of incumbrances, to remove from certain of the public streets of the city of Mew York certain incumbrances described in the writ, and a peremptory mandamus ivas, upon the 28th of June, 1896, duly issued in accordance with the prayer of the petition. Subsequently, and on July 2, 1896, an order to show cause was obtained requiring the parties to that proceeding to show cause why an order should not be made directing that the appellant Doyle be made a party respondent therein, and this is an appeal from the order denying that motion.

We think this order should be affirmed, upon the ground that when the motion was made no proceeding was pending to which the appellant could be made a party. The writ of mandamus had issued requiring the public officers to perform their duty, and the proceeding had terminated. If any one interfered with the rights of the appellant he had a remedy against the one so interfering; but it would be useless to make him a party to a proceeding which had terminated by the final order and the issuing of the writ of mandamus under it.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements.

Present — Barrett; Rumsey, Patterson and Ingraham, JJ.

Order affirmed, with costs.