People ex rel. Ackerman v. Lumb

6 A.D. 26, 39 N.Y.S. 514

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

Opinion

Brown, P. J.:

The relator, who is an honorably-discharged soldier of the army during the rebellion, and who claims to have passed the necessary civil service examination and been placed upon the eligible list for the position of engineer to the pumping works in the city of Poughkeepsie, applied to the Special Term, upon his own affidavit and due notice to the respondents, for a peremptory mandamus commanding the respondents to meet as a water board of said city and appoint him to the position of engineer. The respondents opposed said application, reading in opposition to the relator’s affidavit the affidavit of the superintendent of the water works and one of the water commissioners.

In these affidavits it is alleged that there is no vacancy in the office of the engineer, and the relator’s fitness for the position is denied.

The court thereupon made an order that an alternative writ of mandamus issue, commanding the respondents, in case they failed to appoint the relator to the position he seeks, to show cause and make return to the writ within twenty days after due service thereof upon them.

From this order the respondents have appealed.

The order is not appealable. (People ex rel. Fiske v. Devermann, 83 Hun, 181.) An alternative mandamus is in the nature of an order to show cause. (People v. Ransom, 2 N. Y. 490 ; People v. Mitchell, 39 N. Y. St. Repr. 767.)

It does not affect a substantial right, because it determines nothing against -the respondents or in favor of the relator. It cannot be quashed or set aside for any matter involving the merits. (Code Civ. Proc. § 2075.)

The writ may be demurred to by the respondents, or they may make a return which may be demurred to by the relator. (§§ 2076-2078.)

The writ and the return constitute,, in substance, pleadings, upon which issues of fact or law will arise accordingly as there may be demurrers to, or denials of, the facts alleged. Upon those pleadings the issue, whatever it may be, will be determined, and until such determination no substantial right of any party is affected.

An appeal from an order made in a special proceeding, like an appeal from an order made in an action, lies only when it affects a substantial right. (Code Civ. Proc. § 1356.)

The appeal must be dismissed, with ten dollars costs

All concurred.

Appeal dismissed, with ten dollars costs.