People ex rel. Egan v. Columbia Club

15 N.Y.S. 821, 20 N.Y. Civ. Proc. R. 319, 1891 N.Y. Misc. LEXIS 147

• Court: New York Supreme Court
• Decided: June 12, 1891
• Status: Published

Opinion

Lawrence, J.

The demurrer to the writ of alternative mandamus must be sustained. The alternative writ should set forth the facts upon which the relator bases his claim, in the same manner and with the same particularity as he is required to set them forth in a complaint. Code Civil Proc. §§ 2076,¹ 2082; People v. Baker, 35 Barb. 109; People v. Ransom, 2 N. Y. 494; Gardenier v. Supervisors, 2 N. Y. Supp. 351. The alternative writ in this ease fails to state the facts which show that he has been wrongfully, unjustly, or in violation of the constitution and by-laws of said club, expelled from the club. Adjectives and strong expressions of opinion do not constitute a basis for legal action. The lelator should show what provision of the constitution and of the by-laws of the club has been violated in his case, and wherein the expulsion is illegal. No failure to notify him of the proceedings against him is averred in the writ, and it is well settled that the court cannot look into the petition to obtain the facts, which should be stated in the writ itself. People v. Baker, 35 Barb. 109. For these reasons the demurrer must be sustained, with leave to the relator to amend, on payment of costs.

1 Code Civil Proc. N. Y. § 2076, declares that the statement contained in an alternative writ of mandamus of the facts constituting the grievance are subject to the chapter (6) respecting the statement, in a complaint, of the facts constituting a cause of action, which chapter (section 481) requires the complaint to contain a plain and concise statement of the facts constituting each cause of action.