People ex rel. Mount Vernon Trust Co. v. Millard

127 A.D. 77, 111 N.Y.S. 22, 1908 N.Y. App. Div. LEXIS 1888

Opinion

Jenks, J.:

The relator moved for a. peremptory writ of mandamus. The Special Term made an order denying; the motion for the peremptory writ but directing that an alternative writ issue. . The relator appeals-from that order and from each and every part thereof.

. We think that the appeal should be dismissed. In People ex rel. Ackerman v. Lumb (6 App. Div. 26) the relator moved for a per- émptory writ but the Special Term granted an alternative writ, and the respondents- appealed. We -held that the order was not-appeal-able inasmuch as it was iii the nature of an order to show cause, and did not affect a substantial right. (See, too, People ex rel. Levenson v. O'Donnel, 99 App. Div. 253, and cases cited; Merrill Mandamus, § 306; Baylies N. T. & App. [2d ed.] 107.) Merrill on Man-' damns (supra) says: “ When the courtupon the hearing of- the appli- . cation decides that,, upon the allegations made,, the relator is not entitled to' a -writ- of mandamus, and refuses id grant either a motion to show cause or cm alternative writ, the prevailing opinion in America - is, that such action is a final judgment, from which an appéal or a writ of error may be taken to the appellate court.”

The appeal is dismissed, with ten dollars costs.

Hookeb, Gaybob, -Rich and MíclEb, JJ., concurred.

Appeal dismissed, with ten dollars costs.