Small v. Moss

252 A.D. 71, 297 N.Y.S. 76, 1937 N.Y. App. Div. LEXIS 5586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1937
• Status: Published

Opinion

Per Curiam.

We are of the opinion that this matter should be remitted to the justice at Trial Term who took testimony on the issues of fact raised upon the alternative mandamus order. Upon the evidence adduced before him, he should make specific findings upon all issues of fact involved. The matter may then be returned to Special Term fot further determination. In the proper exercise of its discretion the court at Special Term should grant the peremptory mandamus order unless it appears from the findings of the trial court that the public health, safety or morals of the community would thereby be impaired. (Matter of Goelet v. Moss, 248 App. Div. 499; affd., 273 N. Y. 503; Matter of Phipps Estates v. Moss, 248 App. Div. 872; affd., 273 N. Y. 505.)

The order should accordingly be reversed, with twenty dollars costs and disbursements, and the matter remitted to the trial justice for specific findings upon all issues of fact, the matter thereafter to be referred to Special Term for complete determination pursuant to law.

Present — Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the matter remitted to the trial justice for specific findings upon all issues of fact, the matter thereafter to be referred to Special Term for complete determination pursuant to law.