Isenbarth v. Bartnett

205 A.D. 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1923
• Status: Published

Opinion

Order reversed, on the law, and new trial granted, with costs to abide the event. The respondent’s motion, made at the close of relator’s case, did not raise a question as to the propriety of the proceeding, but related only to the sufficiency of the evidence presented. Under section 1322 of the Civil Practice Act, points of law should be raised by filing written objections at the time the petition is filed. Also, see, section 1331 of the Civil Practice Act. Mandamus is the proper • procedure to compel the granting of this permit, and the relator was not required to review the proceedings of the buildings inspector or the city council by certiorari. (People ex rel. Lankton v. Roberts, 90 Misc. Rep. 439; affd., 171 App. Div. 890; People ex rel. Dilzer v. Colder, 89 id. 503; Matter of Russell, 158 N. Y. Supp. 162; Village of Carthage v. Frederick, 122 N. Y. 268, 271.) Rich, Kelly, Jaycox, Manning and Kelby, JJ., concur.