People ex rel. Bentley v. Commissioners of Highways of Hndson

6 Wend. 559

Opinion

By the Court,

Sutherland, J.

On the coming in of a return to an alternative mandamus, it is provided by statute, that the person prosecuting the writ, may demur or plead to guck 0f (fjg faC£g contained in the return, as he thinks proper. ■ 2 R. S. 586, § 55. A similar statutory provision existed previous to the revision. 1 R. L. 107, § 2. Although these statutes contemplate formal written pleadings m the ordinary mode of conducting suits, the practice of the court is virtually to allow pleadings ore terns ; that is, the relator is permitted to discuss the return, and to ask for a peremptory mandamus, and whilst he does not put in a formal demurrer, the case is * considered as embraced in the description of non-emmerated, business, and is heard as such; but if a formal demurrer is interposed, it becomes enumerated business, and can be heard only at the stated terms. It is optional with a relator whether it shall be considered enumerated or non-emmerated business, unless the court specially direct formal pleadings to be interposed. No injury can result to the defendant in consequence of "this privilege allowed the relator, for if he-wishes to carry up the cause for review, the court permits him, after its decision, to make up and file formal pleadings, so that a. record may be made up; which privilege, however, is not granted to the relator, who has chosen to ask for a peremptory mandamus, without formally demurring; if dissatisfied with'the decision of the court, he cannot carry up the cause for the review. The relator in this case, asking for a peremptory mandamus, without having formally demurred, the case is considered as non-emmerated business, and he may proceed.