People ex rel. Toy v. Mayer

24 N.Y.S. 621, 71 Hun 182, 78 N.Y. Sup. Ct. 182, 53 N.Y. St. Rep. 862

• Court: New York Supreme Court
• Decided: July 28, 1893
• Status: Published

Opinion

PRATT, J.

There is no merit in this appeal. The only point made is that a peremptory writ of prohibition was issued, instead of an alternative writ. No point is made that this was not a proper case for such writ, or that the facts did not warrant it, but only that an alternative writ should have been issued. A héhring upon the merits was had upon an order to show cause, which, in effect, fully answered the purpose of an alternative writ. The object of the proceeding was to prevent the defendant from oppressively and illegally committing the relator to prison; and the fact that it was called a “writ of prohibition” is not material so long as the decision was right upon the merits, and a proper result was accomplished. No object could have been served by issuing an alternative writ, as it appeared that only a question of law was involved, and a short cut was adopted to accomplish a just result. Order affirmed, with costs and disbursements.